Fleming & Fleming v. Pye

• Decision Date: 09 May 1906
• Citation: Fleming & Fleming v. Pye, 95 S.W. 594, 43 Tex. Civ. App. 176 (Tex. App. 1906)
• Parties: FLEMING & FLEMING v. PYE et al.
• Court: Texas Court of Appeals

95 S.W. 594

FLEMING & FLEMING v.PYE et al.

Court of Civil Appeals of Texas.

May 9, 1906.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by B. F. Pye and others against the Gilbert Book Company and others; the Park Bank & Trust Company of Beaumont, garnishee.From a judgment rendered against Fleming & Fleming, defendants, on a replevin bond, they appeal.Reversed.

Teagle & Conley and G. P. Daugherty, for appellants.Xavier Ryan, for appellees.

JAMES, C. J.

This is an appeal by Fleming & Fleming from a judgment rendered against them on a replevy bond which they gave to secure possession of a fund that had been garnished in the hands of the Park Bank & Trust Company of Beaumont.In the main case Fleming & Fleming and the Gilbert Book Company were sued for a debt and the writ of garnishment was issued to the said Bank & Trust Company requiring it to answer what it was indebted to said defendants or either of them.This writ commanded the Bank & Trust Company"to be and appear before the said court at the next term thereof to be held in Beaumont in said county on the _____ day of _____ A. D., 1905, then and there to answer under oath," etc.The garnishee appeared and answered.The Gilbert Book Company undertook to appear in this garnishment proceeding, for the purpose of filing a motion to quash the writ of garnishment.The court did not permit them to appear, but no appeal has been taken by the Gilbert Book Company to this action of the court.Fleming & Fleming, who had given the replevy bond, appeared and made a motion to quash the writ, which was entertained and overruled; the ground of the motion being that it was defective in that it did not mention any certain time or date for the garnishee to make its answer.Fleming & Fleming have appealed and among other things assign as error this ruling of the court, contending that the writ was void, and that the court, therefore, had no basis for the judgment rendered.

Accompanying this opinion, is an opinion by this court, on an appeal in the main case, wherein we hold, giving full reasons therefor, that the writ was defective and not sufficient, under our statute, to subject the fund.Gilbert Book Company v. B. F. Pye(this day decided)95 S. W. 8.The legal consequence of this view of the law is to require the judgment to be rendered in favor of Fleming & Fleming, as they appear to have been dismissed from the main case, and are to be held, if at all, by force of the writ of garnishment.Article 225, Sayles' Rev. Civ. St., provides that "in...