25 Tex. 144 | Tex. | 1860
We are of opinion 'that the District Court for Galveston county had no jurisdiction to render the judgment of the 19th of June, 1848, against Alexander Casselli, and consequently had no jurisdiction to render the judgments of the 6th of July, 1848, and of the 7th of July, 1849, against Samuel Ward. The court acquired no jurisdiction over the person of Casselli, because the petition showed that all the parties were non-residents. It is contended, however, that the court acquired jurisdiction in the case, and was competent to render judgment against the-defendant Casselli, because of the attachment, and the service -of summons upon Ward to appear and answer as garnishee. It is insisted that the failure of Ward to appear and answer was equivalent to a confession that Ward was indebted to the defendant Casselli, and that this was equivalent to the seizure of Casselli’s property under the attachment, which gave the court jurisdiction to render the judgment against Casselli. We do not think that these propositions can be maintained. It would result, if these propositions be true, that the jurisdiction of a court may spring out of, and be made to depend upon presumptions alone, without any fact being
It is said to be well settled that a judgment against the defendant is an indispensable prerequisite to a judgment against the garnishee. (Drake on Attachments, note to section 697. See also section 460, and cases cited.) In the present case the failure of the garnishee to answer is treated as furnishing a presumption of indebtedness by the garnishee to the defendant, equivalent to the service of the attachment upon the property or credits of the defendant, and giving to the court jurisdiction to render the judgment against the defendant; and thus the judgment against the defendant, which is an indispensable prerequisite to the judgment against the garnishee, is obtained; and then the judgment against the defendant is, in its turn, made the measure of the liability of the garnishee. How the judgment against the defendant was rendered at a time when the law raised no conclusive presumption that the garnishee was indebted to the defendant; because, although the garnishee had failed to answer, it was his privilege to be again called into court, and when so called in, he would be permitted to show in answer to the scire facias anything that he might have shown if he had come into court in the first instance, or anything that he might show in an action by the defendant against him. The judgment against the defendant was, therefore, rendered- at a time when the court had no jurisdiction to render such a judgment. The fact of the indebtedness of the garnishee to the defendant was not ascertained, and was not shown to the court, in any such conclusive manner as to authorize the court to treat the fact as ascertained, and to make it the "basis of jurisdiction. It follows that the judgment against the defendant Casselli, having been rendered when the court had no jurisdiction to render it, gave the plaintiff in that judgment no rights against the garnishee. It cannot be treated as the indispensable prerequisite to a judgment against the garnishee. It cannot sustain the subsequent proceedings against the garnishee.
In the case of Thompson v. Allen, (4th Stewart & Porter, 184,) the court said, in speaking of a statute similar to our attachment law of 1839, “ The statute treats a levy upon property
And Mr. Drake, in his work on attachment, says “that in order to a recovery against a garnishee it must be shown affirmatively, either by his answer or by evidence aliunde, that he has property of the defendant in his hands, or that he is indebted to the defendant. The law will not presume him liable. (Drake on Attachments, sec. 461.)
So, in all the cases that can be found in the books, courts have refused to render judgments against garnishees until their indebtedness was shown, or until it was shown that they had property belonging to the defendant in their possession.
We think that the court, in the suit against Casselli, erred in making the presumption of indebtedness by the garnishee to the defendant, the ground of jurisdiction, and that the judgment against Casselli was a nullity, and that the subsequent proceedings against the garnishee were also null, for want of jurisdiction in the court. It follows that no rights could spring out of those void judgments, and that the court below, in the present suit, did not err in refusing to revive the judgment against the garnishee.
The judgment of the court below is affirmed.
Judgment affirmed.