Plowman v. Easton

• Decision Date: 16 January 1897
• Citation: 39 S.W. 171
• Parties: PLOWMAN v. EASTON.
• Court: Texas Court of Appeals

39 S.W. 171

PLOWMAN v. EASTON.

Court of Civil Appeals of Texas.

January 16, 1897.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

Action by Dan Plowman against A. B. Person, aided by garnishment directed against W. M. Easton. Defendant replevied the fund from the garnishee; giving bond with approved sureties, who were not made parties. From a judgment against the garnishee, plaintiff appeals. Reversed.

J. H. Randell and Wilkins & Vinson, for appellant.

LIGHTFOOT, C. J.

Appellee has filed no brief, and we adopt the statement of appellant. The conclusions of the court below are as follows: "(1) On March 7, 1895, in cause No. 8,331 on the docket of the district court of Grayson county, styled `Dan Plowman v. A. B. Person,' the plaintiff, Dan Plowman, filed an affidavit and bond for writ of garnishment to be served on W. M. Easton, the garnishee in this cause. The writ of garnishment was duly issued, and was served on said W. M. Easton on March 9, 1895. In his affidavit for the writ of garnishment, the said plaintiff deposed that the said A. B. Person was justly indebted to him in the sum of $630, but did not in any other manner describe the nature of his claim. (2) On March 17, 1895, the said garnishee, W M. Easton, filed his answer herein, in which he stated that he (Easton) had recovered a judgment against the Texas & Pacific Railway Company for $8,000 on October ____, 1890, in the district court of Grayson county, Texas, from which said judgment said railway company had perfected an appeal; that said judgment was affirmed by the court of civil appeals for the Second supreme judicial district on February ____, 1895; that said judgment had not been paid, but that when the said judgment was paid the said A. B. Person would be entitled to one-fourth of the amount paid on said judgment. (3) On October 2, 1895, the plaintiff, Dan Plowman, recovered a judgment in the district court of Grayson county, Texas, against A. B. Person, in his said suit, for the sum of $765.52, with interest from the date of said judgment at the rate of 12% per annum, and costs of suit, amounting to $24.90, which said judgment is now, and was at the time of the trial of said cause, still in full force and effect, and unpaid. (4) On May 8, 1895, the said A. B. Person executed a bond in the sum of $1,400, with Thomas Grace and L. B. Moore as sureties, payable to the said Dan Plowman, conditioned that the said parties to the said bond would pay any judgment that might be rendered against the garnishee; said bond having been executed in pursuance of the statute then in force, being the same statute as that set forth in article 225 of the Revised Statutes of Texas, now in force. Said bond was properly approved and filed in this court, among the papers of this cause. (5) The said judgment obtained against the said Texas & Pacific Railway Company by the said W. M. Easton, garnishee herein, has long since been paid, to wit, on May 8, 1895, and after the filing of the said bond by the said Person and his sureties. The said railway company paid to the said Easton three-fourths of the amount of said judgment, and, under the direction of the said W. M. Easton, paid to the said Person the remaining one-fourth thereof, being $2,000, and interest. (6) The said Dan Plowman has never caused the said Thomas Grace and the said L. B. Moore, sureties of the said A. B. Person on the said Person's indemnity bond, to be made parties to this cause, nor has any process whatever been issued or served on them herein, nor have they, or either of them, ever appeared in this court. Yet on January 6, 1896, the said Dan Plowman filed a motion in this cause in which he set forth the fact that he had obtained said judgment against said Person; that he had sued out, and caused to be served on said Easton, said writ of garnishment; that the said garnishee had made said answer that said A. B. Person had filed said bond for $1,400, with said sureties; and that the Texas & Pacific Railway Company had paid said judgment which the said Easton had recovered against it,—and praying for judgment in his (the said Plowman's) favor against the sureties on said bond. No notice whatever of said motion was ever issued or served upon said sureties, nor did said sureties, or either of them, appear thereto. (7) The court in this cause rendered a judgment in favor of the plaintiff, Dan Plowman, and against the garnishee, W. M. Easton, but refused to render judgment against the said sureties, Thomas Grace and L. B. Moore."

Under the first and second assignments of error, complaint is made that the court refused to render judgment against the sureties on Person's replevy bond, they not having been made parties or entered their appearances, and that judgment was rendered against the garnishee alone. We find no error of which appellant can complain under either of the...