Westmoreland v. Miller

• Citation: 8 Tex. 168
• Parties: WESTMORELAND v. MILLER.
• Decision Date: 01 January 1852
• Court: Supreme Court of Texas

8 Tex. 168

WESTMORELAND

v.MILLER.

Supreme Court of Texas.

1852.

Where judgment is obtained against a debtor as garnishee, and he is afterwards sued by his original creditor, he is entitled to have the plaintiff in the garnishment made a party to the suit and to have a judgment which will protect him against being required to pay the same debt twice. (Note 39.)

Error from Houston. This suit was brought by the defendant in error, for the use of Burris and wife, against the defendant, on a contract to pay two hundred dollars on or before the first day of January, A. D. 1851, for rent. The plaintiff contracted in the lease of the land as agent for P. J. Burris and his wife E. S. Burris. The defendant in the court below answered that he admitted that he owed the debt named in the petition and that he was ready and willing to pay the same as the court might order, but said that on the 25th day of October, 1850, he was garnisheed at the instance of A. J. Corley, agent, & c., to appear before one W. H. L. Burton, a justice of the peace for said Houston county, to state on oath in regard to his indebtedness to said Elizabeth, who has lately intermarried with Mr. Burris; that in pursuance of said mandate he did appear and answer, and upon his answer judgment was rendered against him as garnishee on the 2d day of November, 1850, for one hundred and eighteen dollars and costs, “which judgment now stands against him unreversed.”” He filed a transcript of the proceedings before the justice of the peace, and asked the court to protect him in the payment of the same, averring that his indebtedness admitted before said justice of the peace was a part of the indebtedness now here sued on and admitted. He prayed “that Corley, who resided in the same county, be made defendant hereto; that process may issue to bring him into court; that the said Corley and Miller, for the use, so implead one another that the court may be the better advised as to who should receive said money, and that he be protected from cost and litigation.” Accompanying the answer was a transcript of the proceedings referred to by the defendant, showing that Corley, as agent for Elisha Clapp, had recovered judgment; that an execution had issued and returned no property; the writ of garnishment; the answer of the garnishee and the judgment against him. The plaintiff demurred specially to the answer; the court below sustained the demurrer, and judgment went for the plaintiff.Yoakum ...