' Section 4.37, page 551. McDonald cites as an example thereof under Footnote 54, page 553, the following: 'Garnishment: contest on answer filed by garnishee, not foreign corporation, residing in county other than that in which main cause is pending: Art. 4096. Answer, when sufficient to entitle garnishee to discharge, leaves to plaintiff option to proceed. If plaintiff controverts, the court of county of garnishment is deprived of jurisdiction and cause must be transferred: Karchmer v. Sanger Bros., 217 S.W.2d 151 ((Tex.Civ.App.) El P 1948); Clay Bldg. Material Co. v. First Nat. Bank, 161 S.W.2d 799 ((Tex.Civ.App.) East 1941); Johnson v. McDonald, 73 S.W.2d 128 ((Tex.Civ.App.) El P 1934 ED).'
The court wherein such certified copies are filed shall try the issues made as provided by law. Art. 4096, Vernon's Ann.Tex.Civ.St. Thus, the cause is not transferred to the residence of the out-of-county garnishee, but provision is made for filing in the proper court of the garnishee's residence, where issues may be formed and tried by the appropriate court of that county. American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.W. 990; Clay Bldg. Material Co. v. First Nat. Bank of Midland, 141 S.W.2d 799 (Tex.Civ.App.), no writ; Gottesman v. Toubin, 326 S.W.2d 586 (Tex.Civ.App.), no writ; Karchmer v. Sanger Bros., Inc., 217 S.W.2d 151 (Tex.Civ.App.), no writ; Johnson v. McDonald, 73 S.W.2d 128 (Tex.Civ.App.), writ dism'd; Lowe and Archer, Texas Practice, Remedies, Sec. 164, p. 143. And see Rule 674, T.R.C.P.
We think therefore, under the record before us, the court in which the main case is pending is without authority to try the issues arising under an affidavit controverting an answer of a garnishee who resides in a county other than the one in which the main case is pending, and that the Trial Court properly transferred the proceeding to Washington County. 20-B Tex.Jur. Sec. 124, p. 348 et seq.; Reed v. First State Bank, Tex.Civ.App., 211 S.W. 333; American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.W. 990; Subscribers, etc. v. Lyday, Tex.Civ.App., 5 S.W.2d 553. Clay Building Material Co. v. First National Bank, Tex.Civ.App., 161 S.W.2d 799, holds that where a garnishee lives in a county other than the county of suit, and his answer is controverted, that the court loses jurisdiction to try the issues raised, and should dismiss the cause, leaving the plaintiff free to pursue the matter further (under Article 4096) in the county of the garnishee's residence, should he elect to do so. In such case the Trial Court as here, transferred the cause to the county of the garnishee's residence, and the garnishor appealed.
Therefore, upon the record before us, we hold that the Justice of the Peace Court at Dallas was wholly lacking in judicial power or authority on November 7, 1947 to grant the so-called motion of Pinkston either for a judgment in his favor on the answer of appellee or to strike the answer and render judgment against appellee by default, and the illegal act of that court in attempting to do so was null and void. American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.W. 990; Bevil v. Trotti, Tex. Civ. App. 141 S.W. 287; General Bonding Cas. Co. v. Lawson, Tex. Civ. App. 196 S.W. 346; Reed v. First State Bank of Purdon, Tex. Civ. App. 211 S.W. 333; Subscribers to Fidelity Lloyds of America v. Lyday, Tex. Civ. App. 5 S.W.2d 553; Clay Bldg. Material Co. v. First Nat. Bank, Tex. Civ. App. 161 S.W.2d 799. Art. 4656 of Vernon's Tex.Civ.Stats.
It is said in American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.W. 990, 992: "Having filed a complete answer which entitled it (the garnishee) to a discharge, the statute gave it the right to have any controversy arising upon it tried in Travis county (the County of domicile) ". We regard the case of Clay Bldg. Material Co. v. First Nat. Bank, Tex. Civ. App. 161 S.W.2d 799 directly in point. The answer of the garnishee bank was almost in the exact language of the answer in the instant case, except it did not pray for a discharge but for general relief. Through the courtesy of the Eastland Court the plaintiff's affidavit in that case has been made available to us.