Gerlach Mercantile Co. v. Hughes-Bozarth-Anderson Co.

• Decision Date: 01 November 1916
• Docket Number: (No. 1054.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 189 S.W. 784
• Parties: GERLACH MERCANTILE CO. v. HUGHES-BOZARTH-ANDERSON CO.
• Court: Texas Court of Appeals

Page 784

189 S.W. 784

GERLACH MERCANTILE CO. v. HUGHES-BOZARTH-ANDERSON CO.

(No. 1054.)^*

Court of Civil Appeals of Texas. Amarillo.

November 1, 1916.

On Motion for Rehearing, November 29, 1916.

Appeal from District Court, Hemphill County; C. Coffee, Special Judge.

Garnishment proceedings by the Hughes-Bozarth-Anderson Company against the Gerlach Mercantile Company. From a judgment for plaintiff, the garnishee appeals. Judgment affirmed.

Hoover & Dial and Baker & Willis, all of Canadian, for appellant. Fisher & Palmer, of Canadian, for appellee.

HUFF, C. J.

This is an appeal from a judgment in favor of the appellee, Hughes-Bozarth-Anderson Company, against the appellant, Gerlach Mercantile Company, for the sum of $809.45, being the principal and interest of an indebtedness due by James Margetts to the appellees, as established by a judgment in favor of appellees, against Margetts in cause No. 710, on the district court docket.

On the 7th day of December, 1914, the appellees, in cause No. 710, Hughes-Bozarth-Anderson Co. v. James Margetts, sued out a writ of garnishment, causing its affidavit and bond for writ to be filed therein on that day and causing a writ of garnishment to be issued to the appellants, Gerlach Mercantile Company, to answer at the next term of the district court of Hemphill county, to be convened on the 11th day of January, 1915, what, if anything, it was indebted to James Margetts, and what effects, if any of the said Margetts, it had in its possession.

The original suit appears from the record to have been instituted by appellants against Margetts as a nonresident, and service was obtained therein by publication. The district court, in which the case was pending, convened January 11, 1915. The case appears to have been passed until the August term, 1915, when judgment was taken against Margetts by default. This judgment recites in its face that service was had by publication in a paper on the following dates: December 17, 24, and 31, 1914, and January 7, 1915, stating that the court found that the appellees here and plaintiffs there recover the sum of $640, together with interest at the rate of 10 per cent. from the 1st day of June, 1913. At the January term of court, January 28, 1916, it appears that this judgment was amended or corrected upon motion. The order directing the correction of the judgment, among other things reciting that it appeared to the court that the judgment entered of record in the minutes of the court did not set forth and speak the action and judgment of the court as rendered in the cause and that a clerical error was made in entering the judgment therein, and it was therefore ordered that the motion be granted, and that the judgment entered be reformed and made to speak the judgment of the court. The judgment caused then to be entered showed that the suit was instituted by appellees against Margetts, and that he was cited by publication, that he had not filed an answer within the time prescribed by law, and that the Hon. J. W. Sanders, an attorney of the court, was appointed to defend in behalf of Margetts. Then reciting the publication in a weekly newspaper published in Hemphill county, and that it was published on the 10th, 17th, 24th, and 31st days of December, 1914, and on the 7th day of January, 1915, being published four successive weeks prior to the return day of the term, January, 1915. It decreed the same amount, reciting that the indebtedness appeared to be a liquidated demand evidenced by an instrument in writing; reciting also that the process of the court may issue to subject the res or the property and effects brought within the jurisdiction of this court, by virtue of the writ of garnishment issued in the cause and served upon Gerlach Mercantile Company, which cause was then pending in the court upon the dockets as cause No. 1028, Hughes-Bozarth-Anderson Co. v. Gerlach Mercantile Company, Garnishee. And it was further ordered that plaintiff's garnishment lien be and the same was foreclosed.

The original judgment entered also showed that the Hon. J. W. Sanders was appointed by the court without reciting that he was an attorney of the court. The garnishees answered the writ of garnishment that it had no property or effects of Margetts,' and that it was not indebted to him and knew no one who was so indebted.

The appellee, Hughes-Bozarth-Anderson Company, traversed this answer, alleging substantially that the garnishee was indebted to said Margetts, and that it had effects of said Margetts in its possession, alleging that it purchased a stock of merchandise from James Margetts, July 19, 1913, and that the seller and purchaser failed to comply with the Bulk Sales Law of Texas, with regard to getting a list of the creditors of Margetts and in not registering notice to them; that the garnishee paid only $1,310.05 for the goods, and their real value and market value was $3,000; that the garnishee moved the stock of goods into a building where it was running a business of like character and mingled the merchandise with his own, placing it beyond identification and reach of the creditors of Margetts; that it sold part of the goods and appropriated all of same to the use and benefit of the garnishee, alleging fraud on the part of Margetts, and the knowledge of such fraud by the garnishee in placing his property, or attempting to do so, beyond the reach of creditors.

This case was tried before Hon. C. Coffee, special judge, who was agreed upon by the parties; the Hon. Frank Willis, the regular presiding judge of that district, having certified that he was disqualified to try the garnishment proceedings, but rendered the corrected or amended judgment in the original suit, No. 710.

The facts in this case, we think, were sufficient to warrant the trial judge in finding that the appellant purchased the goods from Margetts, paying therefor the sum of $1,310.05, and immediately thereafter removed the same from Margetts' store building to the house occupied by appellee as a mercantile establishment, with goods therein of like kind and character. The facts necessary to a further understanding of this case will be noticed in disposing of the several assignments.

It is undoubtedly true that there can be no valid judgment against the garnishee until there is a valid judgment against the defendant. If the court had jurisdiction of the person and of the subject-matter of the suit, the garnishee cannot be heard to question the conclusiveness of the judgment as between the plaintiff and defendant, for the judgment against himself will be full protection to him for any payment he may make under it. Sun Metal Insurance Co. v. Seeligson, 59 Tex. 3. If the judgment was void it will not protect the garnishee. Shoemaker v. Pace, 41 S. W. 498.

The assignments from 1 to 9, inclusive, and propositions thereunder, urge that the judgment is void because: (1) On its face it is shown citation by publication was not made for fully 28 days before the return day. (2) That it was not shown the debt was payable in the county of the suit, it being a debt due a nonresident. (3) That the corrected judgment, rendered January 28, 1916, the day before trial, should not have been admitted in evidence because rendered without notice as provided by statutes. (4) It was entirely different from the first judgment, rendered at the August term, containing new and different adjudication, it being: (a) In rem instead of one in personam, as was the first. (b) The property was brought into court by garnishment and the lien foreclosed without notice to the garnishee. (c) The latter judgment reciting a recovery upon a liquidated demand found upon a written instrument the former only found a debt. (d) The original judgment showed service by publication less than 28 days. The corrected judgment showed more than that time. (e) The garnishee was required to look to the whole record, petition, citation, and the like, which are not shown in this record. (5) The judgment was rendered by the Hon. Frank Willis, who had certified his disqualification in the garnishment cause, and therefore void.

As we understand, appellant does not contend the corrected judgment is void on its face, but that it is so because there was no notice given to the defendant therein, and because the latter was different in important particulars from the former. We also understand it is not contended that the court did not in fact render the judgment at the August term which is shown by the amended judgment entered at the January term following, but that because the entry first made evidenced on its face that it was invalid, that it could not be amended or corrected. If this entry was a mistake and was not the judgment of the court, it was the right, as well as the duty, of the court to see to it the judgment entry on the minutes spoke the truth; that it evidenced the judgment which the court rendered. If there are recitals of facts as to the date of service, which in truth are shown to have been made by mistake, we see no reason why the mistake may not be corrected. Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040. As will be observed in the original entry, the first date of publication is stated as the 17th of December. The amendment shows that the first date of publication was the 10th day of December, 1914. The first judgment simply shows that it was one in personam, while the corrected judgment shows it to be one in rem. We believe it will not be necessary to enter into a discussion whether the first entry on its face was void or voidable. If the amended judgment shows to be a valid judgment the garnishee is protected by it. The correction was entered before the trial of the garnishment proceedings and the rendition of the judgment therein. It has been held that a judgment entered as a personal one against a nonresident upon service by publication may be corrected so as to make it one in rem, restricting it to the fund...