Johnston v. Blanks

Decision Date07 June 1887
Citation4 S.W. 557
PartiesJOHNSTON and others v. BLANKS and others.
CourtTexas Supreme Court

Nix, Storey & Storey, for appellants. Thomas McNeal, for appellee.


Appellants, W. R. Johnson & Co., who were plaintiffs in a garnishment proceeding in the court below, appeal from a judgment allowing appellees, who were the garnishees, an attorney's fee of $10 for preparing their answer. The answer was to the effect that respondents owed the debtor nothing, and prayed that they be discharged with a reasonable compensation for making it. It was signed by attorneys for the garnishees, sworn to by a member of the firm, and was not contested by plaintiffs. Our statute provides that, "where the garnishee is discharged upon his answer, the costs of the proceeding, including a reasonable compensation to the garnishee, shall be taxed against the plaintiff." Rev. St. art. 219. By compensation is meant a sufficient sum to remunerate the garnishee for expenses necessarily incurred in protecting his interest in the proceeding. That reasonable attorney's fees is a necessary expense in every case we have no doubt. A person unskilled in the law is not to be expected to prepare a written answer under our statutes which would secure him from liability, although he owed nothing to the defendant in the original proceeding. Besides, many cases arise in which his liability is doubtful, and the advice and assistance of counsel are necessary to shield him from the danger of having to pay his debt twice. Whatever else it may include, we are clearly of the opinion that the statute was intended to cover a reasonable fee to the garnishee for the services of an attorney in assisting him in the proceeding. Holbrook v. Waters, 19 Pick. 354.

But it is insisted that the court had no power to make the allowance without hearing evidence as to the nature and value of the services rendered. But this we think a mistake. It would certainly be competent for the court to demand evidence if it saw proper, and in some cases this might be necessary. But it is to be presumed that the court is sufficiently acquainted with the value of professional services in preparing a garnishee's answer which is presented to it without hearing testimony. It being the rule in Pennsylvania that the stipulation in a mortgage for a certain commission as attorney's fees in case of default is to be deemed in the nature of a penalty, and that under it only...

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24 cases
  • Texas Co. v. Schriewer
    • United States
    • Texas Court of Appeals
    • March 12, 1931 such compensation, to be paid by appellants." The Supreme Court denied a writ of error in that case. In the case of Johnson v. Blanks, 68 Tex. 495, 4 S. W. 557, 558, the court in construing the same statute held that the trial court could, without evidence, fix the amount of the fee to b......
  • Akins v. Coffee
    • United States
    • Texas Court of Appeals
    • March 6, 1964 Weatherly v. Longoria, Tex.Civ.App., 292 S.W.2d 139; May v. Donalson, Tex.Civ.App., 141 S.W.2d 702; Johnson, et al v. Blanks, et al, 68 Tex. 495, 4 S.W. 557; and B. Joe Hatley v. Charles L. Hatcher, Tex.Civ.App., 376 S.W.2d Finding no merit in appellants' point on appeal, we overr......
  • Smith v. Texas Co.
    • United States
    • Texas Supreme Court
    • October 26, 1932 a trial before him, from his own knowledge of the nature and value of the services for which compensation is claimed. Johnson v. Blanks, 68 Tex. 495, 4 S. W. 557. But it is not within the province of a Court of Civil Appeals to try a disputed issue of fact. It can only use its own knowle......
  • Young v. State Bank
    • United States
    • Texas Court of Appeals
    • February 25, 1909 the nature of the pleadings nor the character of the testimony upon which the ruling of the court was made to depend. Johnson v. Blanks, 68 Tex. 495, 4 S. W. 557, was a garnishment proceeding. The only question there adjudicated which could have any remote bearing upon the issues in th......
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