Miller v. Taylor

• Decision Date: 01 January 1855
• Parties: S. A. MILLER, ADM'R, v. W. M. TAYLOR AND ANOTHER.
• Court: Texas Supreme Court

14 Tex. 538

S. A. MILLER, ADM'R,

v.W. M. TAYLOR AND ANOTHER.

Supreme Court of Texas.

1855.

See this case for circumstances under which it was held that a debt on which suit was pending in the District Court was not subject to the process of garnishment from a Justice's Court. (Note 79.)

Error from Houston. June 29, 1850, Miller, administrator, obtained judgment against Hall before a justice of the peace for $100. February, 1851, arbitration under the statute between Leaverton and Hall. February 21, 1851, garnishment by Miller, administrator, on the judgment of June 29, 1850, for Leaverton garnishee. February 26, 1851, garnishment served on Leaverton. March 8, 1851, judgment in the District Court on the award of the arbitrators against Leaverton in favor of Hall for $126.47, no opposition thereto having been made. March 24, 1851, Hall transferred his judgment against Leaverton to Taylor. March 29, 1851, Leaverton answered as garnishee in the Justice's Court, acknowledging his indebtedness to Hall, and judgment was rendered against him in favor of Miller, administrator. Miller and Taylor both proceeding to enforce their respective judgments against Leaverton, the latter brought this suit for an injunction and to compel Miller and Taylor to interplead, and brought into court the amount of his indebtedness to Hall. Miller answered, confessing the facts alleged. Taylor excepted specially, 1st, that said claim was not subject to garnishment while pending in a court for adjudication; 2d, that the rights of the plaintiff, if any he had, should have been brought forward as an objection to the making of the award the judgment of the District Court. The court below decreed that the injunction be dissolved as to Taylor; that Taylor recover his costs from Leaverton, and that the clerk pay over to Taylor the money paid into court; that the injunction be perpetuated as to Miller, administrator, and that Leaverton recover his costs from Miller, administrator. Miller prosecuted this writ of error.

S. A. Miller, for plaintiff in error. The garnishee process and the trustee process, by which very nearly the same thing is understood, wherever they exist, are the creatures of the local law. They differ in their provisions, probably, in every State in the Union. (11 Kent, p. 403, n. u.) By some of them a judgment debtor cannot be charged as trustee of his creditor. But no such restriction is attached to the garnishee process in this State. (Hart. Dig., arts. 48, 1337.) The statute is broad, covering every character of indebtedness, whether “pending in a court for adjudication” or not. The garnishee must answer “what he is indebted to the defendant, or what effects of the defendant he has in his possession and had at the time of serving the garnishment.”

The second exception of defendant Taylor as a legal conclusion is believed to be incorrect. By reference to the bill, which stands uncontradicted, it will be seen that at the time of the rendition of the judgment on the award no judgment had been rendered on the answer of the garnishee. Hence Leaverton could not show or plead a former recovery. (Taylor v. Gardnier, 2 Wash. U. S. C. C. R., p. 488, found in vol. 1, Amer. Com. Law, abridged by Wheeler, p. 589.)

Yoakum & McCreary, for defendant in error. At the time the garnishment was taken out the indebtedness of Leaverton to Hall was in litigation upon arbitration under the statute. Such indebtedness is not subject to garnishment. Our law of garnishments is derived from the foreign attachment law of England. “““Then a foreign attachment cannot be had when a suit is depending in any of the courts of Westminster, which makes the matter not to be meddled with by any other court.” (Cro. Eliz., 691; Jac. Law Dic., art. ATTACHMENT.)

Besides, the party had a clear remedy--supposing he was rightfully garnisheed--in the District Court on the original suit. He could have set up in defense the garnishment, or in answer to the garnishment he could have set up the District Court judgment and the transfer to Taylor. But he slept upon these rights, if any he had.

WHEELER, J.

The first and principal question to be determined is whether the garnishee could be held liable under the circumstances of this case upon the process issued from the Justice's Court. And the better opinion upon authority seems to be that he could not, by reason of the proceeding pending, or which was the same in effect as a proceeding pending, in another court not of concurrent but of a different jurisdiction, at the time of suing out the process against the garnishee.

“It is an invariable and indisputable principle that a garnishee shall not be made to pay his debt twice. Consequently, when he is in such a situation that if charged as garnishee he cannot defend himself against a second payment to his creditor, he should not be charged.” (Drake on Attachment, sec. 627.) This principle has been applied to cases where legal proceedings were pending against a garnishee at the suit of the defendant in the garnishment. And the doctrine has been held that a garnishee cannot be charged on account of a debt for the recovery of which an action, previously commenced by the defendant, is pending at the time of the garnishment. (Id., and 5 New Hamp., 566.) But the prevailing doctrine in the courts of the several States, and the better opinion, seems to be that the pendency of an action by the defendant against the garnishee will not prevent the garnishee's liability. It is so held in Pennsylvania, Alabama, and Tennessee, and doubtless in other States. The Pennsylvania court, acting, it is said, upon probably the first case in this country in which the question was involved, rejected the English doctrine that a debt in suit cannot be attached as inapplicable here. That doctrine in England grew out of the fact that garnishment there is the offspring of special and local custom and takes place in inferior courts, and the courts of general jurisdiction will not permit suits depending before them to be affected by the process of inferior tribunals. (2 Dallas, 277; 2 Yeates, 190; Drake on Attachment, sec. 636.) In Massachusetts the liability of the garnishee, where an action on behalf of the defendant is pending against him, turns upon the state of the pleadings in the action at the time of the garnishment. If the pleadings are in such a state that the garnishee can plead the garnishment in bar of the action, he can be charged; otherwise not. Thus, where the garnishee had been sued by the defendant, and before the garnishment the action had been referred by rule of court, in which rule it was agreed that judgment should be entered up according to the report of the referees, and execution issued thereon, it was held that the...