National Surety Co. v. McFarland
| Decision Date | 27 April 1922 |
| Docket Number | (No. 1321.) |
| Citation | 241 S.W. 765 |
| Parties | NATIONAL SURETY CO. v. McFARLAND et al. |
| Court | Texas Court of Appeals |
Action by W. J. McFarland against J. W. Clyde and another, in which the Texas Company was made garnishee and defendants in the main action filed a replevy bond with the National Surety Company as surety. From a judgment in the garnishment proceedings against defendants and the surety, the latter brings error. Affirmed.
Chas. L. Black, of Austin, for plaintiff in error.
H. S. Garrett, of Fort Worth, B. S. Dudley, of Ranger, and Prewitt & Dunaway, of Forth Worth, for defendants in error.
This suit was instituted in the district court of Eastland county by W. J. McFarland against J. W. Clyde and T. S. Tilley alleging, in substance, that Clyde and Tilley were indebted to various concerns, naming them, on certain accounts for goods, wares, and merchandise, the several accounts, itemized, and by exhibits made parts of the petition, and amounting in the aggregate to $1,120.06, with interest and costs. At the time of filing suit plaintiff filed his affidavit for a writ of garnishment to be issued to the Texas Company, a corporation, gave the garnishment bond, and obtained the writ of garnishment directed to the Texas Company. The garnishee appeared, urged no objection to any of the garnishment proceedings, and filed answer denying indebtedness to Clyde, but admitting indebtedness to Tilley in the sum of $1,439.10 at the time the writ of garnishment was served, and had become indebted to Tilley, since the service of the writ, in the further sum of $872.30. Clyde and Tilley filed a replevy bond in garnishment with appellant, the National Surety Company, as surety.
Clyde and Tilley filed an answer consisting of a general demurrer and general denial. The case was tried before the court without a jury. The court rendered judgment in favor of the plaintiff and against Clyde and Tilley in the main case, for the total amount of $1,189, with interest at 6 per cent. from the date of the judgment.
In the garnishment proceeding the court rendered judgment in favor of plaintiff against Clyde and Tilley, as principals, and the National Surety Company, as surety, on the replevy bond, for the total amount of the judgment in the main suit, with interest and costs incurred in the main suit and in the garnishment proceeding, and an attorney fee of $50 to the garnishee. McFarland, the Texas Company, and Clyde waived issuance and service of citation in error, and accepted notice of the filing of the petition for writ of error. The National Surety Company alone prosecutes this appeal, and duly filed its assignments of error.
The several assignments and the propositions thereunder claim error in rendering judgment against the National Surety Company as surety on the replevy bond filed in the garnishment proceeding, because of certain defects in the garnishment proceedings, securing the issuance of the writ of garnishment.
First. The affidavit for the garnishment states that "he (McFarland) has reason to believe and does believe that the garnishee, the Texas Company, a corporation, is indebted to the defendants or either of them, or that it has in its hands effects belonging to said defendants or either of them," thus stating the facts disjunctively and uncertainly, and for that reason is fatally defective and insufficient to support the garnishment proceedings.
Second. The affidavit in garnishment reads:
"This writ of garnishment applied for is not sued out to injure either of the defendants or the garnishment, thus rendering the affidavit indefinite and uncertain in failing to show that there was no intent to injure either one of the two defendants."
Third. Because of insufficiency of the affidavit in stating the residence of the garnishee.
Fourth. The petition is subject to a general demurrer, and insufficient to support the judgment awarded the plaintiff, in that the accounts, made parts of the petition, show that the sales in question were made to Clyde, and not to Tilley.
It is evident from the record that the affidavit made the basis for the issuance of the garnishment writ is subject to several of the objections pointed out in the assignments and the propositions thereunder. Clark v. Elmendorf (Tex. Civ. App.) 78 S. W. 538; Dunnenbaum v. Schram, 59 Tex. 281; Thorndale...
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New Amsterdam Casualty Co. v. Keith
...sureties on the replevin bond, the surety seeks to take advantage of it upon writ of error. We think not. See National Surety Co. v. McFarland et al. (Tex. Civ. App.) 241 S. W. 765, and cases there In view of the above holding, the other propositions relied on for reversal are overruled as ......