Oviett v. Warner

• Decision Date: 01 December 1926
• Docket Number: (No. 873-4623.)
• Citation: 288 S.W. 434
• Parties: OVIETT (NORTHWESTERN FIRE & MARINE INS. CO. et al.) v. WARNER.
• Court: Texas Supreme Court

288 S.W. 434

OVIETT (NORTHWESTERN FIRE & MARINE INS. CO. et al.) v. WARNER.

(No. 873-4623.)

Commission of Appeals of Texas, Section A.

December 1, 1926.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Garnishment by Ted Warner against the Northwestern Fire & Marine Insurance Company, wherein H. W. Oviett intervened. Judgment for defendant and intervener was reversed and remanded by the Court of Civil Appeals (281 S. W. 1113), and they bring error. Judgment of Court of Civil Appeals reversed and that of district court affirmed.

Scott & Casey and B. R. Lindsay, all of Marshall, for plaintiffs in error.

Bibb & Caven, of Marshall, for defendant in error.

Beall, Worsham, Rollins, Burford & Ryburn, of Dallas, for garnishee.

NICKELS, J.

The case is sufficiently stated in the opinion of the honorable Court of Civil Appeals (281 S. W. 1113).

Because it was thought one of the defendants in the original judgment had been released it was held that a garnishment based upon an affidavit in which it was not stated that neither of the defendants had "property in his possession * * * subject to execution sufficient to satisfy" the debt was not void — and this upon the theory that the rule announced in Buerger v. Wells, 110 Tex. 566, 222 S. W. 151, and Smith v. City Nat. Bank (Tex. Civ. App.) 140 S. W. 1145, became inapplicable with disappearance of the reason for the rule.

The original judgment was for the sum of $666.98, plus interest and costs, and it was against Oviett and Rudd jointly and severally. Rudd had paid $265 and thereby procured an apparent release. Upon the supposed authority of Merchants' Nat. Bank v. McAnulty (Tex. Civ. App.) 31 S. W. 1091; Id. 89 Tex. 124, 33 S. W. 963; Bates v. Bank, 11 Tex. Civ. App. 73, 32 S. W. 339; Elgin City Banking Co. v. Self (Tex. Civ. App.) 35 S. W. 953; and Watkin Music Co. v. Basham, 48 Tex. Civ. App. 505, 106 S. W. 734, it was ruled that the release was effective.

Writ of error was allowed upon assignments presenting asserted conflict between the latter ruling and those made in Clifton v. Foster (Tex. Civ. App.) 20 S. W. 1005; Bowdon v. Robinson, 4 Tex. Civ. App. 626, 23 S. W. 816; Foster v. Ross, 33 Tex. Civ. App. 615 (writ refused) 77 S. W. 990; Simmons Hdw. Co. v. Adams (Tex. Civ. App.) 147 S. W. 1196; and Bergman Produce Co. v. Brown (Tex. Civ. App.) 156 S. W. 1102, and error in respect to the holdings mentioned.

The law applicable to the facts now involved is correctly stated, we think, in the concluding paragraphs of the opinion in Simmons Hdw. Co. v. Adams, supra, to the effect that the agreement upon which a release is founded must be supported by a consideration, and that this essential element is lacking when the debtor merely pays a part of what he unquestionably owes That ruling has support in the other cases cited to the point.

Nor do the cases cited as being of contrary meaning support the proposition. In each of them distinguishing elements will be found. In Merchants' Nat. Bank v. McAnulty, Swasey's release grew out of separate contract made between the creditor and Casey which was supported by an independent consideration — i. e., payment by Casey, or the partnership of Casey & Swasey, of a portion of the debt for which neither Casey nor the...