White v. Casey

25 Tex. 552 | Tex. | 1860

Bell, J.

It is a general rule of law that a party must make his proper defences to legal proceedings against him at the proper time, and in the proper place. It is obvious that all the objections to the proceedings in the justice’s court, which are enumerated in the petition for certiorari, might have been presented in the justice’s court, and would have been as available to the garnishee in that court as in the District Court. In the case of Peabody v. Buentillo, (18 Tex., 313,) it was held by this court that a party to a judgment rendered by a justice of the peace cannot have a certiorari to remove the case into the District Court on account of any matter of which he might have availed himself before the justice, but which, without any apparent legal excuse, he neglected to urge in the justice’s court. This court, therefore, will not entertain objections that might have been urged in the justice’s court, but which were not urged, unless it appears that the justice’s court had no jurisdiction to render the judgment which is complained of. In this case it appears that the affidavit in support of the garnishment was not subscribed by the officer before whom the oath was made. The affidavit is regular, except that the officer does not sign his name. If objection had been taken in the justice’s court to the affidavit as insufficient to support the garnishment, it might have been amended. It might have been shown to have been a mere clerical misprision, and the officer before whom the oath was made might have been called, and permitted to subscribe his name to the affidavit mine pro tunc. In this case there was a paper filed in the District Court alleging that the affidavit was, in fact, made before the justice of the peace himself, and asking that the justice might be permitted to sign his name to the paper, but this was refused. We think the objection ought to have been taken to the affidavit before the justice, or the district judge ought to have permitted the deficiency in the affidavit to be supplied when it was shown to him to have been a mere clerical omission. But it is also contended that the justice’s judgment was dormant, and, therefore, could not support a garnishment. The writ of garnishment is but another mode of execution, having for its object the collection of the money due on the judgment. If execution had been issued on the judgment, it would have been only voidable, not void. If the money had been .paid on such an execution, it could not have been recovered back, either from the officer or the plaintiff in the judgment. We think the same principle must apply to the garnishment. It is said in Drake on Attachment, § 697, that the garnishee will be protected against a second payment, although there may be in the proceedings against the defendant errors and irregularities, for which the defendant himself might obtain their reversal.' The author says, “it has been always held that a garnishee cannot avoid or reverse a judgment against him on account of mere irregularities in the proceedings in the main action. They only affect the defendant, and he alone can take advantage of them. Nor can he assume to inquire into the merits of the cause, as between the plaintiff and the defendant, or, after judgment against the defendant, to show that the plaintiff had no just demand against the defendant, or that the judgment ought to" be altered or reversed.” It is also said that, in relation to the judgment against the defendant, the garnishee stands as an entire stranger. We think that the irregularities in the proceedings in the justice’s court in this case were not such as render the proceedings void for, want of jurisdiction, and they ought not to have been called in question in the District Court for any other reason, inasmuch as the garnishee had neglected his defences in the justice’s court. It is complained that the justice rendered judgment for costs against the garnishee, without naming the amount of the costs, and that they may exceed the sum in the garnishee’s hands. This is a speculative complaint. The garnishee showed that he had upwards of sixty dollars in his hands. The judgment, interest and costs amounted to forty-three dollars and sixty cents, for which Sum, and the cost of the garnishment, judgment was rendered against the garnishee. The whole judgment against the garnishee could not exhaust the amount in his hands. .Because we are of opinion that there is error in the judgment of the District. Court, and that the motion to dismiss the certiorari ought to have been sustained, the judgment. of the court below is reversed and the cause dismissed. A writ will be sent to the justice, commanding him to proceed to execute his judgment.

Reversed and cause dismissed.