77 Tex. 478 | Tex. | 1890
On October 25, 1885, Scurlock & Rutledge sued one Doggett and one Neely on four promissory notes, aggregating, principal and interest, $1046.76, and $104.67 attorney fees, and on the same day sued out an original attachment.
Before judgment in the original suit, on the 22d of March, 1887, they applied for and obtained a writ of garnishment against the Gulf, Colorado & Santa Fe Railway Company, making oath that the defendant company was indebted to J. E. Neely, but failing to state in the application that the attachment had been issued or any other ground upon which by law the writ of garnishment could issue. On motion the court below quashed the garnishment proceedings because it was not stated in the affidavit therefor that the attachment had been sued out. The question to be decided is, was the ruling correct?
It has always been held that the statute authorizing the writ of garnishment must be strictly construed, and that a party attempting to avail himself of the remedy must strictly follow the law. Jemison v. Scarborough, 56 Texas, 360; Willis v. Lyman, 22 Texas, 269.
Our statute authorizes the issuance of a writ of garnishment in the following cases:
“1. Where an original attachment has been issued.
“ 2. Where the plaintiff sues for a debt and makes affidavit that such debt is just, due, and unpaid, and that the defendant has not within Ms knowledge property in his possession within this State subject to execution sufficient to satisfy such debt, and that the garnishment applied for is not sued out to injure either the defendant or the garnishee.
“3. Where the plaintiff has a judgment and makes affidavit that the defendant has not within his knowledge property in his possession within this State subject to execution sufficient to satisfy such judgment.” Rev. Stats., art. 183.
In article 185 of the same act it is provided that “before the issuance
Under these articles, what must the application for the writ contain ? Besides being under oath and in writing, it must state, if it is based upon the fact that an attachment has issued, that fact; if based upon the fact that the affidavit required in subdivison 2 of article 183 has been made, it must state that such affidavit has been made, and the same if subdivision 3 is relied on; and in addition to this it must state the necessary fact of indebtedness of the garnishee as required in article 185. In other words, the application must show that the fact authorizing the writ exists, and that the law has been fully complied with.
The fact that the attachment is a part of the record and will show for itself is no answer to the positive demand of the statute. It is sufficient to say that the law requires the application to state the fact or facts authorizing the issuance of the writ and the additional fact of the indebtedness of the garnishee or the belief of such indebtedness. Ueither is it of any consequence that former laws did not require such statements under oath. It is the law now, and it must be complied with before a garnishment can legally issue.
We conclude the judgment of the court below quashing the garnishment proceedings is correct and should be affirmed.
Affirmed.
Adopted May 27, 1890.
