295 S.W. 698 | Tex. App. | 1927
Appeal by the State Bank Trust Company, which we will call *699 the bank, from a judgment against it as garnishee in favor of W. O. Horn Bro., Inc.
The bank urges four propositions, which we will consider in the order presented:
(1). It is contended that, since its answer showing nonliability was filed September 4, 1923, and the controverting affidavit was not filed until April 3, 1924, the court was powerless to render the judgment.
This proposition is rested upon the following provision of subdivision 11 of article 2092, R.S. of 1925:
"The plaintiff in garnishment shall have 15 days after the garnishee's answer is filed within which to controvert the same if he so desires."
This provision is a part of the practice act of 1923, page 215, which relates to certain counties in the state, and applies to the district courts of Dallas county. This provision of the act has not been construed. The record shows that the parties went to trial on certain issues recited in the judgment, and no objection was made by either party to proceeding under the pleadings, the issues formed, and the evidence introduced. The point now urged by appellant is presented for the first time on appeal without assignment of error as fundamental. There is nothing in the language of the statute above quoted which intimates that the plaintiff in garnishment may not controvert the garnishee's answer after the expiration of 15 days. The manifest purpose of the provision was to give the plaintiff in garnishment 15 days as a matter of law within which to controvert the garnishee's answer, after which time the garnishee no doubt has the right, in the absence of a controverting affidavit, to have judgment entered discharging him thereon. But until judgment is rendered the court without question has jurisdiction over the case, and the parties may file pleadings or amended pleadings which are not prohibited by law, and which are allowed by the court, so long as discretion in such allowance is not abused.
In the absence of objection to going to trial upon the controverting affidavit as filed, or of some showing of injury by permitting it to be filed and considered, we think the failure to file it within the time prescribed by law was a mere irregularity, and was waived.
The general rule is that, where pleadings are required to be filed within a specified time, they may be filed thereafter, provided the court has not in the meantime rendered its judgment. Bateman v. Maddox,
(2). It is urged that the court was without power to render a moneyed judgment against the garnishee, because plaintiff in garnishment did not controvert that portion of the answer denying indebtedness to the defendant in the principal case, but only controverted that portion denying that the principal defendant owned stock in the bank.
The affidavit upon which the garnishment was based alleged that plaintiff in garnishment had reason to believe, and did believe that the bank was indebted and had effects belonging to the principal defendant, and that the latter was the owner of shares of stock In the bank. The writ required the bank to answer under oath with reference to indebtedness to and effects of the principal defendant, what other persons were so indebted or had effects, and the number of shares, if any, the principal defendant owned in bank. The answer of the bank covered by denial each of the matters as to which the writ required it to answer. The controverting affidavit merely alleged that plaintiff in garnishment had good reason to, and did, believe that the principal defendant owned at least ten shares of stock in the bank. The trial court's judgment recites that the plaintiff and defendant in garnishment appeared by their respective attorneys, announced ready for trial, and that the following issues were formed:
"As to the amount of stock held by the debtor mentioned in the writ of garnishment in the State Bank Trust Company, and as to the amount of funds held by the State Bank Trust Company at the time the writ of garnishment was served and the amount of funds which passed into the possession of the State Bank Trust Company belonging to the debtor mentioned in the writ of garnishment, between the date of the service of the writ of garnishment herein and the date of the filing of the answer in garnishment herein."
Article 4095, R.S. 1925, provides:
"If the garnishee whose answer is controverted, is a resident of the county in which the proceeding is pending, an issue shall be formed under the direction of the court and tried as other cases."
This article immediately follows that relating to traverse of the garnishee's answer. It was held in Keily v. Gibbs,
In Holloway v. Bank,
(3). The third proposition reads:
"It was error for the court to render judgment in favor of the plaintiff against the garnishee for $1,810.06 when it was shown that the writ of garnishment referred to Ed. Gaston and the evidence showed that both Ed. Gaston and E. P. Gaston were customers of the garnishee bank, but that E. P. Gaston was the person against whom the judgment was rendered in the main suit, while the real Ed. Gaston who was a customer of the garnishee bank had no connection with said suit"
The record shows in this regard the following: The judgment in the main suit was against Ed. Gaston and another, upon notes signed by him "E. P. Gaston." The garnishment affidavit and writ described the main defendant as Ed. Gaston. The undisputed facts were that Edwin Gaston was the father of Edwin P. Gaston; the latter was vice president, cashier, and a director in garnishee bank at the time the garnishment was sued out, and for some time thereafter. He usually signed his name in business transactions "E. P. Gaston," and it was he who was the real defendant in the main suit. Both the father and son were customers of the bank, but the father usually was a borrower. E. P. Gaston was often called and known as Ed. Gaston. Neither the president nor other officer of the bank made any effort to determine which of the two Edwin Gastons the judgment was against. The evidence will support a finding that Crawford, a member of the firm of attorneys who represented the bank in the garnishment proceedings, knew prior to the time the answer was filed that E. P. Gaston was the real defendant in the judgment. "Under the well-settled rule that the law recognizes only one Christian name, it has been repeatedly held that the insertion or omission of, or mistake in, a middle name or initial in a criminal as well as a civil proceeding is therefore immaterial." 29 Cyc. 265. This was the rule at common law, and has been repeatedly announced in this state. See McKay v. Speak,
It is also well settled that "judicial notice will be taken of the ordinary and commonly used abbreviations of Christian names" (29 Cyc. p. 269), such as, for example, Eliza for Elizabeth (Goodell v. Hall,
"An element in proper names of Anglo-Saxon origin meaning originally `property' (in Anglo-Saxon `prosperity' or `happiness'), as Edward, Anglo-Saxon Eadweard, protector of property; Edwin, Anglo-Saxon Eadwine, gainer or friend of property."
Both the Funk Wagnalls and Webster's International Dictionaries give "Ed." as a diminutive of the Christian name Edwin.
Under the above well-recognized rules of law, we think the contention made with reference to the identity of the defendant in the writ of garnishment with the defendant in the main suit is without merit, and is overruled.
(4). The fourth proposition is to the effect that the following provision of the trial court's judgment constituted fundamental error:
"It is further ordered, adjudged, and decreed by the court that the clerk of this court be, and he is hereby, ordered and directed to issue such writs of execution and other processes as are necessary to effectuate the terms of this judgment."
It is contended in this connection that the judgment should have provided what writs should be issued, and not left that matter to the discretion of the clerk.
The judgment is somewhat inartfully drawn, but we think what the court intended to adjudicate appears with sufficient clarity. The amount of the judgment against Ed. Gaston is found at $1,634.95, with 6 per cent. per annum interest thereon from September 3, 1918, and $4.50 costs. The amount to Ed. Gaston's credit in the bank when the writ was served, and his deposits thereafter up to the filing of the bank's answer, was found to be $1,810.06, and the number of shares he owned in the bank to be ten. The court rendered judgment against the bank for $1.810.06; with 6 per cent. interest per annum from date of judgment, and costs, ordered the ten shares of stock sold, the proceeds applied to the main judgment up to $287.15 (the excess of the main judgment over the personal judgment against the bank), and the balance to the satisfaction of the personal judgment against the bank, any balance on the main judgment up to the amount of the personal judgment against the bank to be enforced by execution against the bank.
The general rule contended for by appellant, as stated above, is correct. No objection, however, to the form of the judgment was made in the trial court, and we would not feel warranted in taxing the costs of appeal against the appellee, merely to make this correction, when relief might have been obtained below if seasonably sought. See Merryman v. Bank (Tex.Civ.App.)
The appellant may, if it desires, have the quoted paragraph of the judgment reformed at its own cost, so as to prescribe the appropriate writs to be issued in its enforcement by submitting a proper draft thereof.
The trial court's judgment is affirmed.
Affirmed.