78 Tex. 262 | Tex. | 1890
This is an appeal from a judgment in a garnishment proceeding. The writ of garnishment was sued out in the same case and at the same time as that in the case of this same appellant against the Henrietta National Bank, ante —, this day decided. The writs are alike, but this appeal presents some questions in addition to those presented by the other. In the present case there was an intervention, a contest, and a trial by jury.
Hpon the trial the plaintiff offered in evidence his writ of garnishment, which upon objection was excluded by the court. The ground of objection was that the writ did not show the amount of the debt claimed by the plaintiff of the defendant.
We have this day held in Curtis v. Bank, supra, that the omission did not invalidate the writ. But we see no propriety in introducing in evidence the process or pleadings in a case, and hence can not hold that the court committed error in its ruling. The writ was not evidence tending to establish the affirmative or the negative of any issue made in the case. Nor did the court err in refusing to allow it to be amended. It needed no amendment in order to give it validity.
The'court erred, if at all, in instructing the jury to find for the garnishee as against the plaintiff and in favor of the intervenor as against the garnishee. If either the writ was invalid or if the fund was not subject to garnishment the instruction was not erroneous. In addition to the failure of the writ to show the amount claimed by the plaintiff of the defendant, the appellees also insist that it was bad because it was issued by the clerk against himself as garnishee. We are cited to no authority upon the question and have been able to find none, but our conclusion upon the other point makes it unnecessary to decide it.
The fund which was sought to be subjected to garnishment in this case
But appellant further-insists that since he amended his pleading, showing that Wells was a nonresident, and that the money in controversy was the only fund from which he could obtain satisfaction of his debt, the court should have granted him relief upon equitable grounds. If the writ of garnishment does not apply he has no adequate remedy at law. Whether there be any equitable remedy by which a fund of this character may be reached may be doubted, but we are of opinion that if any such exists it was not proper to apply it in this ¡oroceeding. This was a contest between the plaintiff in garnishment, the garnishee, and an intervenor; and we think the plaintiff could not by amendment change the proceeding from a legal to an equitable action without making the defendant Wells a party. We do not wish to be understood as deciding that a gam
There was no error in allowing the garnishee his attorney fees as a part of the expense of making his answer. Willis v. Heath, 75 Texas, 124; Johnson v. Blanks, 68 Texas, 495.
The effect of our decision is to hold that the court by the process of garnishment acquired no jurisdiction over the money in controversy. It results from that conclusion that the court had no power to adjudge the fund to the intervener. So much of the judgment seems to us to be fundamentally wrong. It will accordingly be reformed in that particular and affirmed.
Reformed and affirmed.
Delivered October 24, 1890.