Curtis v. Ford

• Decision Date: 24 October 1890
• Citation: 14 S.W. 614
• Parties: CURTIS v FORD <I>et al.</I>
• Court: Texas Supreme Court

14 S.W. 614

CURTIS v FORD et al.

Supreme Court of Texas.

October 24, 1890.

Appeal from district court, Clay county; P. M. STINE, Judge.

Hazlewood & Templeton, for appellant. Robertson & Coke, for appellee.

GAINES, J.

This is an appeal from a judgment in a garnishment proceeding. This writ of garnishment was sued out in the same case and at the same time as that in the case of this same appellant against the Henrietta National Bank, this day decided. The writs are alike, but this appeal presents some questions in addition to those presented by the other. In the present case, there was an intervention a contest, and a trial by jury. Upon the trial the plaintiff offered in evidence his writ of garnishment, which, upon objection, was excluded by the court. The ground of objection was that the writ did not show the amount of the debt claimed by the plaintiff of the defendant. We have this day held, in Curtis v. Bank, ante, 614, that the omission did not invalidate the writ; but we see no propriety in introducing in evidence the process or pleadings in a case, and hence cannot hold that the court committed error in its ruling. The writ was not evidence tending to establish the affirmative or the negative of any issue made in the case, nor did the court err in refusing to allow it to be amended. It needed no amendment in order to give it validity. The court erred, if at all, in instructing the jury to find for the garnishee, as against the plaintiff, and in favor of the intervenor, as against the garnishee. If either the writ was invalid, or if the fund was not subject to garnishment, the instruction was not erroneous.

In addition to the failure of the writ to show the amount claimed by the plaintiff of the defendant, the appellees also insist that it was bad because it was issued by the clerk against himself, as garnishee. We are cited to no authority upon the question, and have been able to find none, but our conclusion upon the other point makes it unnecessary to decide it. The fund which was sought to be subjected to garnishment in this case came into the hands of the garnishee, as clerk of the district court of Clay county, under the following circumstances: Wells, the defendant in the suit in which the present garnishment proceedings were instituted, brought suit in the district court of Clay county against E. Dawson et al., and had sequestered a stock of cattle. The cattle were sold by order of court and the proceeds had been paid by the sheriff into the hands of Ford, the present garnishee, as the clerk of the district court. The cause was removed to the United States court, but the money remained in the hands of Ford. Upon the determination of the case, the United States court adjudged that the fund belonged to Wells. It was before this adjudication that the writ of garnishment was sued out and served, but the answer of the garnishee was filed afterwards. The pleading and evidence upon the trial showed these facts.

Appellant...