174 S.W. 705 | Tex. App. | 1915
Joe Hamilton sued appellant for $92.15 and to foreclose an alleged vendor's lien on real estate. It was averred that the sum of money was the balance due and unpaid on the voluntary sale of plaintiff's homestead. Appellant made defense, among other things, in the nature of estoppel, that a writ of garnishment was served upon him issuing out of the justice court on a judgment in favor of E. I. Lazarus against Joe Hamilton, and that, upon the service of the writ, appellant notified Hamilton and requested him to make answer setting up his exemption to the funds, and that Hamilton agreed to do so, but later informed appellant that he would not answer the garnishment proceedings, and that it would be all right for appellant to let the case go to judgment; that appellant, relying upon this statement and purpose of Hamilton, did not answer, and judgment was entered by the court, which appellant paid into the justice court on the debt of Hamilton. Appellee Hamilton demurred to the defense. The court sustained the demurrer, and appellant was deprived of the defense. The appellant by assignment predicates error on the ruling of the court.
It was the duty of the garnishee to make the defense of exemption (Railway Co. v. Whipsker,
The assignment is sustained, and the judgment as to appellant is reversed, and the cause remanded. The judgment against Connor Bros., not having been appealed from, will remain undisturbed.