Tobler v. Stubblefield

32 Tex. 188 | Tex. | 1869

Lindsay, J.

This is a suit upon a note against two joint and several obligors. The note was executed on the 28th day of December, 1862, for the hire of two slaves for the year 1868. Before judgment, the citations were returned " executed.” Coteinporaneously with the institution of the suit, a wwit of attachment was sued out against one of the obligors upon an allegation that he was about to remove from the county, and thereby the plaintiff would probably lose his debt. A writ of garnishment was also run against an alleged debtor of the same obligor. The attachment was not executed. But the writ of garnishment was returned “ served ” upon the alleged debtor. All parties defendant made default, and judgment for the amount of the note, as claimed in the petition, was entered against the joint obligors and the garnishee.

There are nine errors assigned; and, upon an inspection of the record, it is most manifest most of the assignments are well made. The first two are wholly unimportant, as they relate to the attachment, which was never executed, and, therefore, as a provisional and ancillary remedy, only failed of its purpose. But it appears that the citations, both original and ancillary, were made returnable on days non dies juridici. The court, by law, was holden on one day, and the process to be served, and which was served, in its precept, directed the return to be made upon another day.

A judgment founded upon such process ought not to be permitted to stand. It would certainly be most unjust against the garnishee, who may have been thus deprived of showing, by his response to the writ, whether he was indebted at all; and if so, how much, to his co-defendant. Besides all this, no amount of indebtedness is specifically set forth in the affidavit for the writ of garnishment; and though in blank, a. judgment is rendered against him for the entire demand against the obligors, upon the return of an illusory process to answer. The petition also needs amendment. It mis-described the note introduced as evidence. The eighth and ninth assignments are not well taken. The consideration for which the note was given was, at the time of its execution, strictly legal. And the statement, or averment, in the petition, that the plaintiff was the administrator de bonis own, uncontradicted by answer, or plea, was sufficient without proof. If he were not so, it was matter of defense.

The judgment is reversed and remanded for new proceedings in conformity with this opinion.

Reversed and remanded.