Margerum v. Sopher

• Decision Date: 20 January 1932
• Docket Number: No. 3717.,3717.
• Citation: Margerum v. Sopher, 46 S.W.2d 457 (Tex. App. 1932)
• Parties: MARGERUM v. SOPHER et al.
• Court: Texas Court of Appeals

46 S.W.2d 457

MARGERUM v.SOPHER et al.

No. 3717.

Court of Civil Appeals of Texas. Amarillo.

January 20, 1932.

Rehearing Denied February 24, 1932.

Appeal from Hutchinson County Court; Norman Coffee, Judge.

Action by Jess Sopher and another against E. B. Margerum, wherein E. L. Keith was garnisheed.From a judgment for plaintiffs against garnishee, defendant appeals.

Affirmed.

Jos. H. Aynesworth, of Borger, for appellant.

Herbert S. Sublett, of Borger, for appellees.

JACKSON, J.

Jess Sopher, the plaintiff, instituted suit, numbered 479, in the county court of Hutchinson county, Tex., on June 30, 1931, against E. B. Margerum, the defendant, alleging an indebtedness due him by defendant of $352.97 for certain services rendered by plaintiff at the special instance and request of the defendant.

On the same day the plaintiff filed his affidavit, application, and bond and secured a writ of garnishment to be issued and served on E. L. Keith as garnishee, which was docketed as cause No. 480.

On July 7th the plaintiff filed his amended petition in which he itemized his account against the defendant and alleged the sum sued for to be $329.40.On the same day the defendant filed his amended answer, on which date the case was tried before a jury and the plaintiff recovered judgment against the defendant for the sum of $175 and for costs of suit.

On July 11, 1931, E. L. Keith, the garnishee, answered in cause No. 480, stating that at the time the writ of garnishment was served upon him he was and still is indebted to the defendantE. B. Margerum, in the sum of $414.86.

On July 10, 1931, the defendant intervened in cause No. 480, the garnishment proceeding, and moved that the court set aside and hold for naught the affidavit, bond, and writ of garnishment, for the reason that the affidavit for the writ discloses that plaintiff claimed an indebtedness in the sum of $352.97 and the petition as amended is for the sum of $329.40 and on the trial plaintiff admitted the defendant was due a credit in the sum of $2.50, showing that plaintiff's bona fide claim was for only $326.90, for which reason the garnishment proceedings were defective and void.

The plaintiff excepted to the defendant's motion to quash the garnishment proceedings, because the defendant had not filed a replevy bond as required by law in such cases and was therefore not entitled to intervene in the garnishment proceedings and urge the invalidity of the affidavit in garnishment.

The motion filed by the defendant attacking the validity of the affidavit in garnishment was overruled by the court and judgment rendered for the plaintiff against the garnishee for $175, from which judgment the defendant in the original suit, intervener in the garnishment suit, prosecutes this appeal.

In the original petition plaintiff alleged his indebtedness to be $352.97.In the affidavit for garnishment, with the other material facts, it is stated: "That plaintiff sues defendant in said suit for a debt amounting to the sum of $352.97.That said debt is just, due and unpaid and the defendant has not within the knowledge of plaintiff property in his possession within this state subject to execution sufficient to satisfy such debt and that the garnishment now applied for is not sued out to injure either the defendant or the garnishee."In the amended petitionthe plaintiff itemized his account and alleged the indebtedness to be $329.40.

On the trial the plaintiff admitted that the defendant was entitled to a credit of $2.50, leaving the indebtedness claimed to be $326.90.

The only questions presented on this appeal are whether the affidavit in garnishment was fatally defective and, if so, was the defendant entitled to intervene in the garnishment proceedings, cause No. 480, and urge such defect without filing a replevy bond as required by Article 4084, R. C. S.?

Article 275, R. C. S., provides in effect that the plaintiff by making an affidavit stating that the defendant is justly indebted to him and the amount of the demand, together with the other requirements necessary therefor, may secure the issuance of a writ of attachment.

Article 6841, subd. 2, provides in effect that if plaintiff seeks to foreclose a mortgage or enforce a lien, he shall make affidavit that the same is just and the amount of the indebtedness still unsatisfied.

We find no such requirements in the statutes pertaining to the issuance of a writ of garnishment.

Article 4076, subd. 2, R. C. S., provides that writs of garnishment may issue: "Where the plaintiff sues for a debt and makes affidavit that such debt is just, due and unpaid, and that the defendant has not within his knowledge property in his possession within this state, subject to execution, sufficient to satisfy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee."

Article 4077 requires that the plaintiff shall execute a bond, with two or more good and sufficient sureties, to be approved by the officer issuing the writ, payable to the defendant in double the amount of the debt,...