Kelly v. Gibbs

• Decision Date: 25 March 1892
• Citation: 19 S.W. 380
• Court: Texas Supreme Court
• Parties: KELLY v. GIBBS.<SMALL><SUP>1</SUP></SMALL>

19 S.W. 380

KELLY v. GIBBS.¹

Supreme Court of Texas.

March 25, 1892.

Commissioners' decision. Section B. Appeal from district court, Walker county; N. G. KITTRELL, Judge.

Garnishment proceedings by Mrs. S. E. Gibbs, executrix of the estate of Sanford Gibbs, deceased, against Hawkins Kelly. Judgment for plaintiff. Defendant appeals. Reversed.

McKinney & Hill, for appellant. Campbell & Ball, for appellee.

TARLTON, J.

This is a proceeding in garnishment instituted August 31, 1891, by Mrs. S. E. Gibbs, executrix of the estate of Sanford Gibbs, deceased, against Hawkins Kelly, as a debtor of A. J. Ward. The affidavit in garnishment, alleging the grounds therefor provided, is founded upon a judgment charged to have been recovered by Sanford Gibbs in the district court of Walker county on April 12, 1878, for $1,507, besides interest, against Ward, Dewey & Co., a firm composed of A. J. Ward, E. C. Dewey, and Nathon Patton. September 29, 1891, Kelly answered in the negative, in writing and under oath, the several statutory questions suggested in the writ. October 12, 1891, Mrs. S. E. Gibbs filed an affidavit controverting the garnishee's answer. Prefixed to the statement of facts is a statement by the trial judge that "the parties agree to join issue orally on the garnishee's answer. The defendant garnishee files general denial, or same is considered filed. The plaintiff's replication is," etc. October 14, 1891, the court rendered judgment for appellee against appellant, for $80 and costs, from which this appeal is prosecuted.

The court found it to be a fact that there was a valid and unsatisfied judgment in favor of plaintiff's testator, Sanford Gibbs, against A. J. Ward and others, as alleged in plaintiff's affidavit. Appellant complains of this conclusion, because there was no evidence showing the existence of the judgment in question. After the filing of an answer sufficient to prevent a judgment by default, and an affidavit controverting this answer, our statute (article 213, Rev. St.) provides that "an issue shall be formed under the direction of the court, and tried as other cases." In this case such an issue was formed, and by consent of parties it was submitted orally. It was not necessary that the allegations setting out the issue should be under oath. Insurance Co. v. Willis, 70 Tex. 12, 6 S. W. Rep. 825. In joining issue, it appears that the defendant pleaded the general denial. This, in our opinion, cast upon the plaintiff the burden of proving the existence of the judgment which was at the foundation of the proceeding. As the record shows that such proof was not made the judgment is erroneous.

Kelly, the garnishee, was a tenant of Ward, the judgment debtor. The court found that Kelly owed Ward $80 for a mule which the latter had furnished him for the purpose of enabling him to make a crop of corn and cotton during the year 1891. The court, after decreeing a recovery of $80, in effect, adjudged "that Mrs. Sallie E. Gibbs, executrix of Sanford Gibbs, deceased, be and is here now subrogated to all the rights, remedies, and liens now owned, held, or controlled by A. J. Ward against the mule...