Freeman v. Miller

• Decision Date: 21 May 1880
• Docket Number: Case No. 3900.
• Citation: 53 Tex. 372
• Parties: DAVID FREEMAN v. M. D. MILLER.
• Court: Texas Supreme Court

53 Tex. 372

DAVID FREEMAN

v.M. D. MILLER.

Case No. 3900.

Supreme Court of Texas.

May 21, 1880.

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

Judgment was rendered at the spring term, 1878, of the district court of Williamson county, in favor of M. D. Miller and against Negbaur & Robins, defendants, for the sum of $1,382.93, and against David Freeman, the appellant, as garnishee for a like sum.

Freeman sued out injunction to stay execution on the judgment, and prayed for a new trial.

Miller filed a motion to dissolve the injunction, and dismiss the suit for want of equity in the bill. The motion to dissolve was heard and granted in vacation. When court convened the bill was dismissed, from which plaintiff appealed.

The plaintiff set out in his bill the following facts:

That he, plaintiff, was a citizen of Galveston county, and was so at and before the commencement of the suit in which the judgment was rendered; that on the 6th of April, 1878, one John S. Shields, a justice of the peace and notary public for Galveston county, came to the office of plaintiff in the city of Galveston, and stated he wished to take the answers of plaintiff, as garnishee, in the case of Miller v. Negbaur & Robins, pending in Williamson county. That thereupon plaintiff made to that officer full answer to each and every interrogatory propounded to him, and attached the affidavit of the officer to that effect; that the officer then left, saying he would reduce the statement to writing; that shortly afterwards he returned with the purported answers written out, and presented the same to plaintiff, and that the above in substance is all that passed.

That he was never cited before the officer to answer said interrogatories; that he was never served with a copy thereof; that the commission was never executed save as above stated; that he did not fail or refuse to answer any interrogatory propounded to him under the commission.

That the answers so taken by the officer were returned with the commission to the court from whence the commission issued, they being substantially as follows: That he, Freeman, garnishee, is not indebted to the firm of Negbaur & Robins, or to Herman Negbaur or R. R. Robins, as individuals, but on the contrary said firm is indebted to him in the sum of $70.16, and has owed him that sum of money since the 30th of January, 1878, and prays the court to dismiss him as garnishee.

That the officer so taking his answers certified them, saying the said answers having been reduced to writing by him, and sworn to by the garnishee and subscribed by him, D. Freeman, the same are certified under the hand and official seal of the officer.

That the answer was returned to the court, when, on the 17th of April, he not being present, counsel for the plaintiff in the pending case, Miller v. Negbaur & Robins, moved the court for judgment against D. Freeman, as garnishee, on the ground that he had failed to answer the questions in the commission as to whether he had effects or credits of Negbaur & Robins in his possession, or knew of such being in the hands of others, and what person or persons; that the motion was filed on the 17th of April, 1878, and was acted on by the court on the same day, the garnishee having no knowledge of the motion, never having received notice thereof in any way.

That in truth and in fact he had no effects of defendants, or either of them, in his possession, either on the 2d day of February, 1878, or on the 5th day of February following, or between those dates; that he did not then know nor does he now know of any credits or effects of the defendants, or either of them, in the hands of any other person.

That the truth is, that the account between Negbaur & Robins and plaintiff was closed on the 30th of January, 1878, leaving the $70.16 a balance against Negbaur & Robins; that the state of the account has remained unchanged.

That the state of account between plaintiff and Negbaur & Robins was well known to M. D. Miller at the date of the issuance of commission, and at the time when judgment was rendered against plaintiff as garnishee.

That Miller proceeded without proper or other notice whatever to plaintiff to obtain judgment to vex and harass plaintiff, fraudulently intending and contriving to injure, cheat and defraud him.

That plaintiff had no knowledge or information that the judgment, or any judgment whatever in the matter, had been rendered against him until May, 1878, at which time the district court of Williamson county had adjourned for the term. That he has been prevented from making a showing to set aside the judgment, and for other proper orders therein during the term at which it was rendered, by the fact that he did not learn of its rendition until after the adjournment of the court for the term.

That Miller had caused execution to issue on the judgment, which is now in the hands of the sheriff of Galveston county, who threatens to, or has already levied the same on property of plaintiff, and will proceed to sell the same, under execution, to plaintiff's irreparable injury unless restrained by injunction.

He prayed that to the end that justice may be done, and fraud and oppression prevented, for injunction to restrain further action under execution, and that the judgment as against him may be set aside and he granted a new trial, and for general relief.

Attached to the petition was the affidavit of the notary, who took the answers of the garnishee wherein he says: That on the 5th day of April, 1878, he received a commission to take the answers of D. Freeman, defendant, in garnishment in the case of M. D. Miller v. Negbaur & Robins,...