McClung v. Watson

• Decision Date: 04 April 1914
• Citation: 165 S.W. 532
• Parties: McCLUNG v. WATSON.
• Court: Texas Court of Appeals

165 S.W. 532

McCLUNG v. WATSON.

Court of Civil Appeals of Texas. Amarillo.

April 4, 1914.

Appeal from Armstrong County Court; H. L. Mobley, Judge.

Proceeding by J. C. McClung against J. O. Watson, garnishee. From a judgment for garnishee, plaintiff appeals. Reversed and remanded, with directions.

W. A. Wilson, of Claude, for appellant. J. S. Stallings, of Claude, for appellee.

HENDRICKS, J.

A writ of garnishment, as ancillary to his main suit, was caused to be issued by appellant, plaintiff in the court below, and served upon the appellee, J. O. Watson, garnishee in the court below; and the record discloses that one J. D. Davis was indebted to the appellant upon a promissory note, and judgment was rendered in the original action, with the costs of suit, amounting to $177.87, against said Davis. In the garnishment proceeding appellee, Watson, answered, denying that he owed the said Davis any sum, or that he had any effects in his hands or possession belonging to said debtor; this answer was controverted by appellant, alleging that, at the time the writ was served, the garnishee had in his possession certain live stock which was the property of the said J. D. Davis; and the record discloses that the debtor, Davis, was a tenant on appellee's farm, and was entitled to pasture for his said stock, and that during the tenancy Davis, being also indebted to Watson, and contemplating leaving the country, solicited from Watson, the garnishee, a "standing bid" or offer for all the personal property that he (Davis) possessed, and thereupon Watson made an offer on said property, which included the live stock in controversy. During the pendency of this offer the appellee Watson became dissatisfied with the manner in which certain of the horses were being handled, and complained to Davis that the stock was being abused by his boys; also informing Davis that he desired to ship the stock, but, on account of the manner in which they were being handled, that he would call his bid off. Davis insisted that Watson permit his bid to stand, and it was then arranged that ten head of the live stock, designated and selected by Watson, should be placed in the latter's field at his home place, and that, upon that consideration, he would let his bid stand in the manner made, to which Davis agreed. We infer from the record that the oat field upon which Davis' stock were pastured was Watson's home place, and inclosed separately, with accessible water in said field for the use of stock, distinct from any pasture Davis formerly used, or had the right to use. Watson testified that "he was just merely pasturing and watering it [the stock] to get it up in good shape," and that he had some of his own stock in the same field with that of Davis, and to that extent he had the possession of the stock. The testimony indicates that during the pasturage of Davis' stock by Watson the former had the right to resume possession of the horses at any time. Immediately after the garnishment was served upon Watson, Davis sold the stock to one Collins, and Collins immediately resold to Watson for $5 less money than he paid for said stock; previous arrangement having been made between Collins and Watson for the resale of the property. Part of the consideration between Collins and Davis, and Watson and Davis, was indebtedness that Davis owed each.

The question of the possession of Watson of the stock, whether sufficient, under the statute of garnishment, as "effects" in the hands or in the possession of Watson to sustain garnishment, seems to have been the crucial question litigated between the parties, also submitted to the jury, who decided in favor of the garnishee.

The appellant assigns error, complaining that the court permitted the garnishee, Watson, to testify that he did not have actual possession of the stock in controversy, on the ground that such testimony was a conclusion involving a mixed question of law and fact, and was one for the jury to determine from the evidence. Appellant argues that particularly in this character of case, where the question of possession was the deciding issue in the controversy, that to permit a witness to inform the jury that he did not have actual possession, that the latter would be probably led to believe—the court having sanctioned the admissibility of the testimony—that the garnishee did not have, and the facts did not raise, that character of control and custody of the stock as to make the same subject to garnishment. We think this complaint is just; that, as to the distinct issue in the character of case presented here, a conclusion by a witness that he did not have a certain character of possession, permitted to the jury under the sanction of the court, might mislead a jury, and the credibility of the witness would stamp such a conclusion with more or less strength as to its correctness. This is equivalent to permitting a witness and a litigant to testify that he owned certain property, where ownership of the same was in litigation between the parties, which is not admissible. National Bank v. Ricketts, 152 S. W. 646. Appellee says that appellant's statement is insufficient, in that the ground of the objection is not stated in the brief. One of the propositions under the first assignment of error complaining of the particular testimony involved suggests the very objection made in the bill of exceptions, which latter is full and complete when we go to the record, and, in the exercise of our discretion regarding the assignment upon a question directly involving the merits, we think such an objection should be overruled. In regarding this assignment as well taken, it necessarily opens the record to the merits of the case, and it is our view that, upon the undisputed facts in this controversy, judgment should have been rendered in the lower court in favor of the creditor and against the garnishee for the value of Davis' equity in the ten head of live stock, excluding the amount of chattel mortgage liens thereon.

The garnishor, in his application for the writ (article 273, R. S.), is required to state, among other things, that he "has reason to believe, and does believe, that the garnishee * * * is indebted to the defendant, or that he has in his hands effects belonging to the defendant"; and the garnishee is required "to answer upon oath what, if anything, he is indebted to the defendant, and was when such writ was served, and what effects, if any, of the defendant he has in his possession, and had when such writ was served"; and the effect of the service of such...