Freeman v. Miller

• Decision Date: 01 January 1879
• Citation: 51 Tex. 443
• Parties: DAVID FREEMAN v. M. D. MILLER.
• Court: Texas Supreme Court

51 Tex. 443

DAVID FREEMAN

v.M. D. MILLER.

Supreme Court of Texas.

1879.

APPEAL from Williamson. Tried below before the Hon. E. B. Turner.

M. D. Miller sued Negbaur & Robins, partners, on protested drafts drawn by the latter on D. Freeman in favor of the former. Petition in ordinary form.

In addition to suing Negbaur & Robins, Miller alleged grounds for writ of garnishment directed to D. Freeman, a citizen of Galveston, the drawee in the drafts, and who had declined to pay them.

Service on defendants and writ of garnishment to Freeman.

Defendant Robins made default. Negbaur demurred and denied generally. Judgment final was rendered against both defendants for the amount sued for.

Freeman, the garnishee, did not answer the writ. Commission was sued out, with interrogatories, and sent to a notary at Galveston.

The notary took the answers of garnishee and returned them.

Plaintiff excepted to the answer of garnishee on the ground that it failed to respond to two of the interrogatories embraced in the commission, and moved for judgment against him.

The court rendered judgment against defendants Negbaur & Robins, and then rendered judgment against the garnishee for the whole sum, ($1,382.93,) because, as recited in the judgment, he had failed to answer the interrogatories propounded in the garnishment according to law.

From this judgment the garnishee sued out writ of error and filed the following assignments of error:

1. That it does not appear that the interrogatories annexed to the commission were ever propounded to him by the officer, or that they were ever read to him, or served on or seen by him.

2. That it does not appear that he failed or refused to make due answer to any interrogatory propounded to him oy the officer charged with the execution of the commission.

3. That it does not appear that he failed or refused to make due answer to any interrogatory under said commission, or that he was ever cited by the officer to appear and answer the same, or that said officer ever certified that he had failed or refused to answer.

4. That there was no ascertainment of the nature or of the value of any pretended credits or effects.

5. That there was no notice to him of any motion or application for judgment against him.

6. That it was incompetent for the court to render judgment against him for failing or refusing to answer, except when such failure or refusal was certified by the officer charged with the execution of the commission in conformity with the statute in such cases made and provided.

7. Because it is not competent for the court to render final judgment against a garnishee upon failure or refusal to answer as to credits or effects in his hands, or in the hands of any other person known to him, without evidence.

8. The said judgment is contrary to the law, in that it does not sufficiently appear that petitioner ever failed, neglected, or refused to answer the writ of garnishment in the first instance.

9. The judgment is not supported by the evidence.

10. There is no evidence on which to base the judgment.

11. The judgment is oppressive, unjust, and inequitable.

The action of the garnishee and of the officer before whom he appeared will be seen from the following return:

+----------------------------------------------+
                ¦“STATE OF TEXAS,   ¦)¦M. D. MILLER            ¦
                +-------------------+-+------------------------¦
                ¦                   ¦)¦vs.                     ¦
                +-------------------+-+------------------------¦
                ¦Galveston County.  ¦)¦D. FREEMAN, Garnishee.  ¦
                +----------------------------------------------+
                

Suit pending in the District Court of Williamson county, State of Texas.

In obedience to the foregoing and annexed commission, I, John S. Shields, a duly commissioned and qualified notary public in and for the county of Galveston, D. Freeman, the witness named therein, personally appeared before me, in my office, in the city of Galveston, this day, and after being duly sworn, in answer to the interrogatories propounded in said commission, deposes and says: That he is not indebted to the firm of Negbaur & Robins, or to Herman Negbaur or R. R. Robins as individuals; but, on the contrary, the said firm of Negbaur & Robins are indebted to him, the witness, D. Freeman, in the sum of $70.16, and have owed him that amount of money since the 30th day of January, 1878.

And, further, this witness prays the court that he be dismissed as garnishee.

D. FREEMAN.

And said answers, having been reduced to writing by me, were then and there sworn to and subscribed before me by the said witness, the said D. Freeman.

To certify all of which, I hereunto subscribe my name and affix my official seal, at my office, in the city of Galveston, this 5th day of April, 1878.

+-------------------------------------------+
                ¦[L. S.]¦JOHN S. SHIELDS,                   ¦
                +-------+-----------------------------------¦
                ¦       ¦Notary Public, Galveston county.  ”¦
                +-------------------------------------------+
                

R. G. Street and Walton, Green & Hill, for appellant.--The garnishee was not cited to come before the officer. He did not refuse to answer. The officer did not certify a refusal on the part of garnishee to answer. (Paschal's Dig., arts. 157, 167.)

The garnishee, D. Freeman, did not admit an indebtedness to defendants, nor was any indebtedness proven. He did not admit or deny the possession of credits or effects of the defendants in his possession, nor was any evidence taken as to the value of any effects or credits supposed to be in his possession. (Paschal's Dig., arts. 157, 167; Willis v. Lyman, 22 Tex., 269, 270;Haggerty v. Ward, 25 Tex., 146;Culbertson v. Ellison, 20 Tex., 102;McRee v. Brown, 45 Tex., 508, 509; Sayles' Treat., sec. 634; Drake on Attach., secs. 451 b, 461, 462, 633; Brotherton v. Anderson, 6 Mo., 388;Briggs v. Sholes, 14 N. H., 263.)

The evidence does not warrant the judgment. (Paschal's Dig., arts. 157-167; Sayles' Treat., sec. 634; Willis v. Lyman, 22 Tex., 269, 270; Drake on Attach., secs. 451 b, 461, 462, 633; Flanegan v. Earnest, 1 Chand., (Wis.,) 164; Davis v. Pawlette, 3 Wis., 306; Brown v. Slate, 7 Humph., (Tenn.,) 113; Wetherill v. Flanagan, 2 Miles, (Penn.,) 243; Bean v. Bean, 33 N. H., 285;Smith v. Bruner, 23 Miss., 508; Morse v. Marshall, 22 Iowa, 292.)

J. H. Robertson and J. W. Robertson, for defendant in error.

BONNER, ASSOCIATE JUSTICE.

David Freeman, a resident citizen of Galveston county, was garnished at the instance of M. D. Miller, in a suit brought by him in Williamson county against Negbaur & Robins. On failure of Freeman to answer, commission, under the statute, issued to Galveston county, propounding to him the three statutory questions:

1. What he was indebted to the defendants Negbaur & Robins.

2. What effects of the defendants he had in his possession at the date of the serving on him of the writ of garnishment.

3. What credits or effects of the defendants were in the hands of any other person, and what person.

In response to the first interrogatory, the garnishee answered that he was not indebted to the defendants, but that they were indebted to him, and failed to answer the other two questions. No...