Kirby v. Giddings

• Decision Date: 28 January 1890
• Citation: 13 S.W. 27
• Court: Texas Supreme Court
• Parties: KIRBY <I>v.</I> GIDDINGS <I>et al.</I>

13 S.W. 27

KIRBYv.

GIDDINGS et al.

Supreme Court of Texas.

January 28, 1890.

Appeal from district court, Washington county.

Writ of garnishment in favor of R. H. Kirby, a judgment creditor of Mrs. M. E. Wood, served on Giddings & Giddings as garnishees. Mrs. Wood intervened. Plaintiff appeals from a judgment in favor of garnishees and the intervenor.

J. T. Swearingen, for appellant. Bassett & Muse, for appellees.

STAYTON, C. J.

Appellant was judgment creditor of Mrs. M. E. Wood, and caused a writ of garnishment to be served on Giddings & Giddings, bankers, with whom Mrs. Wood had on deposit $800. The writ of garnishment was served on January 6, 1888, and garnishees answered by admitting the deposit, but setting up that the money in their hands was a part of the proceeds of the homestead of Mrs. Wood, recently sold, which she contemplated investing in another home at once, and was in the act of doing when the writ was served on them. The substance further of their answer will be seen in so much of the petition in intervention of Mrs. Wood as will be here set out. Mrs. Wood intervened, and alleged "that she is the owner of the $800 in the hands of the garnishees, and that the same is not subject to the plaintiff's writ, for this, that this intervenor is, and has been hitherto, for more than 30 years consecutively, a citizen of Texas, and a constituent of the family composed of herself and her late husband, A. H. Wood, and their children, and since the death of the said husband she has been the head of the family, and, as such, entitled to the homestead and other exemptions reserved by law to every family against the claims of creditors; that said moneys in controversy are the proceeds of the sale of her late homestead in Washington county, Tex., which she had sold for the purpose, and with the specific intention, of investing the proceeds thereof in another homestead in Grimes county, Tex., to which it was her purpose to remove; and that at time of the service of the plaintiff's writ the same was in process of transmission to Grimes county for the purpose of reinvestment in such other homestead." On trial before a jury, there was a verdict in favor of Mrs. Wood; and the assignments of error question the ruling of the court in overruling exceptions to the answer of the garnishees, and to the petition in intervention filed by Mrs. Wood. Assignments also question the correctness of the rulings in giving and refusing to give charges requested. We find in the transcript what purports to be a statement of facts, duly signed by counsel and approved by the judge; but this was filed after adjournment, so far as the record shows, without any order permitting this to be done. As there is no statement of facts, the charges cannot be considered; but, as they show the theory on which the case was tried, and involve the question submitted by demurrer, the assignment containing them is here given. The sixth assignment is as follows: "The court erred in instructing the jury, in charge in chief, as follows: `If you...