73 Tex. 239 | Tex. | 1889
This is a garnishment proceeding. The amount in controversy is for house rent that accrued entirely between the service of the writ of garnishment and the date of the garnishee’s, answer. Before the debt became due, and before the answer was made, the. debtor gave an order for the amount of the debt to a third party, which was accepted by the garnishee subject to the result of this suit.
The judgment appealed from was against the plaintiff. It is contended in support of the judgment:
1. That the writ of garnishment can only reach things in existence at the time it is issued, unless the statute provides otherwise; which it is insisted our statutes have not doné.
2. That the writ is purely a creature of the statute, and that the statute must be strictly construed.
“From and after the service of such writ of garnishment it shall not be lawful for the garnishee to pay to the defendant any debt or to deliver to him any effects.”
And after having thus provided that after the service of the writ he shall pay no debt nor deliver any effects to the debtor, thereby holding in his hands all that he owes or has at and subsequent to the service of the writ, article 188 requires the garnishee to state under oath what his indebtedness was when the writ was served and what it is when he answers.
If it had been intended only to hind what he owed when the writ was served it was unnecessary to require him to state what he owed when he afterwards answered. If the garnishee complies with the directions of the statute he can make no payment to the debtor at any time after the service of the writ, and it will necessarily follow that when he answers he will be indebted all that he owed when the writ was served or came to owe any time afterwards before answer.
As the service of the writ of garnishment prevents the voluntary payment of a debt by the garnishee, it necessarily deprives the debtor of all power to compel its payment. As between the debtor and the plaintiff in garnishment the, superior right to the money is in the plaintiff in garnishment. To say that the debtor may transfer the garnished debt to a third person so as to defeat the garnishment is to recognize in the debtor a power to invest his assignee with a property in the debt that he does not own himself.
It is an elementary principle that a purchaser of a debt or other property can not acquire a better right or title to the thing sold or transferred than the seller had. Such exceptions as exist to the rule can not arise in such transactions as the one under consideration. To admit that if the debtor does not transfer a debt accruing between the service of a writ of garnishment and the date of his answer the garnishment will hold it for the benefit of the plaintiff in garnishment, but that if he does so transfer it the purchaser will hold it against the plaintiff, is to directly repudiate the doctrine of Us pendens.
The case of Tirrell v. Canada & Rice, 35 Texas, 533, is an authority for holding that the garnishment binds what the garnishee is indebted as well at the date of his answer as at the service of the writ.
The case of Mensing v. Engelke, 67 Texas, 533, seems to recognize the doctrine that the writ binds an indebtedness accruing between the service of the writ and the date of the answer. It does not change the
The judgment of the court below will be reversed and here rendered for appellant for forty dollars with interest at the rate of eight per cent per annum from the 12th day of December, 1887, and in favor of appellee for all costs of this court and the court below.
Reversed and rendered.
Delivered March 5, 1889.
