21 Tex. 501 (Tex. 1858), Iglehart v. Moore
|Citation:||21 Tex. 501|
|Opinion Judge:||HEMPHILL, CH. J.|
|Party Name:||E. J. IGLEHART v. J. W. MOORE.|
|Attorney:||J. E. Cravens, for plaintiff in error. Howell, for defendant in error.|
|Court:||Supreme Court of Texas|
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.
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.
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