Iglehart v. Moore

• Decision Date: 01 January 1858
• Citation: 21 Tex. 501
• Parties: E. J. IGLEHART v. J. W. MOORE.
• Court: Texas Supreme Court

21 Tex. 501

E. J. IGLEHART

v.J. W. MOORE.

Supreme Court of Texas.

1858.

The maker of a negotiable note, while current, cannot, as a general rule, be charged in garnishment.

The maker of a negotiable note is the debtor, not of the payee of the note, but of the owner or holder at maturity; and no judgment should be rendered against a garnishee, where he answers fully, unless it would be available to him as a defense against any action brought for the same debt, and this whether the note has been transferred or not before service of the garnishment.

Where a note given by a garnishee has been assigned, the garnishee should not be exposed to the hazard of a double judgment, but upon his prayer to that effect the assignee should be cited to appear and interplead, and have their rights adjusted. Post, 545; 2 Tex. 397, 428;3 Tex. 457;6 Tex. 305, 435;8 Tex. 168;14 Tex. 538;16 Tex. 408;23 Tex. 508.

Error from Anderson. Tried below before Hon. J. H. Reagan.

The defendant in error, Moore, who had previously obtained a judgment against one Samuel M. Dalton, garnished the plaintiff in error, Iglehart, upon the usual affidavit. Iglehart answered, stating that Sam. Mills was at the time of the service of the garnishment the holder of a certain note given by him, and the amount of which the defendant in error was seeking to subject to his judgment, and prayed that Mills be made a party, in order that the rights of both the claimants might be adjudicated. It further stated, that the note was made payable to Mrs. Sarah Washington, or bearer. He prayed that said Mills be made a party to the suit, etc. The court refused to make Mills a party, and upon the answer of Iglehart gave judgment in favor of Moore against him.

J. E. Cravens, for plaintiff in error.

Howell, for defendant in error.

HEMPHILL, CH. J.

The answer of the garnishee discloses in substance, two defenses:

1st. That the debt due from him to Dalton, the defendant in execution, was by negotiable note not due, and which in fact was transferred to Sam. Mills before the service of the garnishment.

2d. That Sam. Mills had a claim to the debt, of which the garnishee had notice before the service of the writ; and that Mills should be cited to interplead with the plaintiff, and the garnishee be protected from further litigation, etc.

That the maker of a negotiable note, while current, cannot as a general rule be charged in garnishment, is a rule recognized by the great mass of judicial decisions, and is supported by the principles at the foundation of the garnishee's liability. Among these are the following: That the attachment plaintiff can (generally) hold the garnishee responsible only so far as the defendant might hold him in an action of law; that the garnishee cannot be placed by the garnishment in a worse condition than he would otherwise be, and that no judgment should be rendered against a garnishee when he answers fully, unless it would be available to him as a defense against any action brought for the same debt. Drake, Attach. sec. 578. The maker of a negotiable note is the debtor, not of the payee of the note, but of the owner or holder at maturity. He may not know who this is until presented for payment, and on principle he cannot be charged as the debtor of the payee, or any intermediate holder before the note falls due. Wybrant v. Rice & Nichols, 3 Tex. 458. In this case, the garnishee was apprised of the transfer of the note before the service of the garnishment; but his defense, on the ground of the negotiability of the note, would have been available whether it had been transferred or not; or whether he did or did not have knowledge of such transfer.

His statement throws some shade of doubt upon the date of the note. The original note for two hundred and fifty dollars is dated on its face 11th November, 1856. The garnishee in his answer states the date to be the 16th December, 1856, which was the day next after the service of the garnishment, but he avers facts repugnant to this statement.

He alleges that on the same day, and a short time before the service of the garnishment, the note was presented to him by Sam. Mills, through his clerk, notifying him that he was the holder of the note. This fixes the execution of the note on the same day, but prior to the service of the writ.

The note, as originally given, was for two hundred and fifty dollars, the maker to be allowed credit for claim against Dalton in the sum of one hundred dollars. The allowance of this credit by Dalton, after the service of the garnishment, and also a further credit of thirty-five dollars, which should have been deducted at the time the note was given, and the taking a new note for the balance, viz.: the sum of one hundred and fifteen dollars, cannot materially vary the...