Callihan v. Colorado Nat. Bank, 1071.

• Decision Date: 10 March 1933
• Docket Number: No. 1071.,1071.
• Citation: 58 S.W.2d 143
• Parties: CALLIHAN v. COLORADO NAT. BANK.
• Court: Texas Court of Appeals

58 S.W.2d 143

CALLIHAN v. COLORADO NAT. BANK.

No. 1071.

Court of Civil Appeals of Texas. Eastland.

March 10, 1933.

Appeal from Mitchell County Court; A. F. King, Judge.

Garnishment proceedings by George Callihan against R. L. Lunceford, defendant, and the Colorado National Bank, garnishee. From judgment rendered, plaintiff appeals.

Reversed and remanded.

F. L. Kuykendall and A. M. Howsley, both of Albany, for appellant.

R. H. Ratliff and C. H. Earnest, both of Colorado, Tex., for appellee.

HICKMAN, Chief Justice.

Appellant recovered judgment for $386.12, besides interest and costs of suit, against R. L. Lunceford in the county court of Shackelford county. Ancillary to his suit against Lunceford he caused a writ of garnishment to be issued and served upon appellee. An answer was filed by the garnishee, admitting an indebtedness of $170.79 to Lunceford. Appellant controverted the answer, claiming in his controversy that the garnishee was indebted to Lunceford in the sum of $750 at the time the writ of garnishment was served. This controverting affidavit was filed in the county court of Shackelford county. After appellant recovered judgment against Lunceford, the garnishment suit was transferred to Mitchell county, where the garnishee had its domicile, and the clerk of the county court of that county issued citation to the garnishee, returnable to the next term of court, which convened on January 4, 1932. There were some negotiations between the attorneys with reference to a waiver of citation and trying the case prior to the January term, but these negotiations resulted in nothing, because the garnishee's attorney concluded that it would be the safer practice to implead the defendant Lunceford. On the 5th day of January, 1932, same being the appearance day of the term of the court to which the garnishee was cited, a final judgment was entered against garnishee for $170.79; the judgment reciting that the plaintiff appeared not but wholly made default. Appellant's attorney learned of the rendition of this judgment on or about the 18th day of January, and thereafter, during the term at which it was rendered, filed a motion for new trial, and later an amended motion, which was overruled, and this appeal followed.

Much of the appellant's brief is devoted to the contention that the trial court abused his discretion in refusing to grant him a new trial upon the facts as developed in the motion therefor. We find it unnecessary to consider this matter,...