Burke v. Hance

• Decision Date: 11 February 1890
• Citation: 13 S.W. 163
• Parties: BURKE <I>et al.</I> <I>v.</I> HANCE.
• Court: Texas Supreme Court

13 S.W. 163

BURKE et al.v.

HANCE.

Supreme Court of Texas.

February 11, 1890.

Appeal from district court, Galveston county.

W. B. Denson, for appellants. Wharton Branch, for appellee.

HENRY, J.

About the year 1886, James G. Burke brought suit in the district court of Galveston county against W. B. Hance, to recover damages for personal property wrongfully taken and converted by said Hance. On the 18th day of February, 1888, Burke recovered judgment for the sum of $604.16. This judgment was afterwards affirmed by this court. The record before us and the report of the former case show that it was brought here by appeal. 73 Tex. 62, 11 S. W. Rep. 135. One A. Chimene had recovered against Burke two judgments in a justice's court in Harris county. On the 3d day of March, 1888, Chimene sued out, against Hance, writs of garnishment, which were served upon him in Galveston county, where he resided. On the 23d day of March, 1888, Hance answered the writs, denying, in general terms, that he was indebted to Burke, and stating, specially, the fact and the date of the recovery of the judgment against him in the district court of Galveston county, adding: "But respondent says said judgment is utterly unjust, and will be immediately removed by writ of error from said district court to the supreme court of the state, and that respondent is legally advised and firmly believes that said judgment will be duly reversed by said supreme court, and the case on which it was rendered be remanded for another trial, at which trial respondent is legally advised and firmly believes he will wholly defeat the unjust and iniquitous claim upon which said Burke recovered judgment. Further, respondent says: That he now has pending in the district court of Galveston county a suit against said James G. Burke for damages in the sum of five thousand dollars, for which amount he expects to recover judgment against said Burke at the ensuing April term of said district court. Wherefore respondent says said Burke is indebted to respondent in excess of any indebtedness respondent may possibly be under to said Burke, in case the judgment referred to in favor of said Burke shall be affirmed by the supreme court." On April 30, 1888, judgments were rendered in the justice's court in favor of Chimene, and against Hance, in both of the cases. Hance failed to appeal, or take any other steps to relieve himself from these judgments. Execution having been issued upon the judgment in favor of Burke, and levied upon the property of one of the sureties of Hance upon his appeal-bond, this suit was brought by Hance to enjoin further proceedings under said execution and, among other things, setting up the rendition of said judgments against him as garnishee as a cause why said execution, and the judgment on which it issued, should not be collected. The petition charges that said judgments are unpaid, and amount to the sum of $486.12. It is further charged that executions on said justice's judgments have been issued, and are in the hands of the sheriff of Galveston county for collection. The petition complains that said justice's judgments ought to be credited on said Burke's judgment, and that plaintiff ought to be protected from a double payment, and prays that defendant Burke be cited to appear and show cause why the amount of said justice's judgments should not be paid to Chimene. W. B. Denson intervened, and alleged and proved that, in the year 1886, Burke transferred to him one-half of his claim against Hance. He also alleged an additional interest in it, and another intervenor, Halsey, alleged an interest in the whole of the claim that was in excess of the amount claimed by Denson. Chimene also intervened, and adopted the allegations and prayers of plaintiff's petition. The court rendered judgment in favor of Denson for one-half of the amount of the judgment recovered by Burke against Hance, and in favor of Chimene for the balance of it, less $25.20 appropriated to the payment of costs. The sureties of Hance had paid the money into court. Burke and the intervenors Denson and Halsey prosecute this appeal. The only question that is presented to us for decision relates to the judgment in favor of Chimene.

It is said that "a negligent garnishee is no more entitled to protection that any other negligent party, and he is as much bound to look after the proceedings against him, and protect himself from an improper judgment, as a defendant in an ordinary suit is. If, by his failure in this respect, the plaintiff gain an advantage over him, he is without relief." Drake, Attachm. § 658e. In the case of Miller v. Taylor, 14 Tex. 538, Miller had a judgment in a justice's court against Hall. Subsequently there was a proceeding by arbitration between Leaverton and Hall, in which a judgment for money was rendered in the district court against Leaverton, and in favor of Hall, which was subsequently transferred by Hall to Taylor. During the pendency of the arbitration proceeding, Miller sued out a writ of garnishment against Leaverton. Leaverton answered as garnishee, after judgment against...