McCoslin v. David

• Decision Date: 28 October 1899
• Citation: McCoslin v. David, 54 S.W. 404, 22 Tex. Civ. App. 53 (Tex. App. 1899)
• Parties: McCOSLIN et al. v. DAVID.
• Court: Texas Court of Appeals

54 S.W. 404

McCOSLIN et al. v.DAVID.

Court of Civil Appeals of Texas.

October 28, 1899.

Appeal from Limestone countycourt; A. J. Harper, Judge.

Action by Minnie G. David, administratrix, against J. T. McCoslin and others.From a judgment for plaintiff, defendants appeal.Affirmed.

Doyle & Bradley and J. E. Bradley, for appellants.White & Rennolds, for appellee.

FINLEY, C. J.

This suit was brought in justice court by appellee, Minnie G. David, administratrix, against appellants, J. T. McCoslin, as principal, and R. P. Merrill and G. W. Carpenter, as sureties on his replevy bond in garnishment, for the amount of a certain judgment recovered by appellee against the garnishee, Foreman, and, on appeal to the county court, resulted in a judgment for appellee for the amount prayed for.Appellee pleaded the execution of the bond by appellants, conditioned as required by statute, and the recovery of judgment against the garnishee, and that it was unpaid.Appellants answered, among other things, a general denial, and that at the time the writ was served, and afterwards, the garnishee did not owe appellant McCoslin anything, and did not have in his hands any effects belonging to said appellant.The case was tried by the court without a jury, and resulted in a judgment for appellee for $109.26 and costs, to which action of the courtappellants excepted, and gave notice of appeal to this court.Appellants made a motion to reform the judgment so as to make it conform to the value of the effects found by the court to have been in the garnishee's hands, belonging to said McCoslin, which was overruled; and appellants also excepted to that order, and have perfected their appeal to this court, by giving bond and assigning error.

The trial court filed the following conclusions of fact and law:

"Conclusions of Fact.(1) Prior to October 4, 1898, J. S. David filed suit in justice of the peace court, precinct No. 4 of this county, against J. T. McCoslin, on two notes aggregating $94.50, and caused a writ of garnishment to issue and be served upon D. E. Foreman.(2) On October 4, 1898, J. T. McCoslin filed in said cause a replevy bond, with defendantsR. P. Merrill and G. W. Carpenter as sureties, in the sum of $225, payable to J. S. David, and conditioned as provided by article 225, Rev. St. 1895, `for the payment of any judgment that may be rendered against the said garnishee in such suit.'(3)J. S. David died, and plaintiff was appointed administratrix of his estate, prior to the institution of this suit.(4) On November 11, 1898, plaintiff obtained a judgment by default against D. E. Foreman in said justice court, precinct No. 4, for the sum of $94.56 and costs, together making $109.26, which is unpaid.(5)DefendantsJ. T. McCoslin, R. P. Merrill, and G. W. Carpenter were not made parties to said garnishment suit, and were never cited...