Roy Campbell & Co. v. Roots, 4032.
| Decision Date | 17 May 1933 |
| Docket Number | No. 4032.,4032. |
| Citation | 60 S.W.2d 896 |
| Parties | ROY CAMPBELL & CO. v. ROOTS. |
| Court | Texas Court of Appeals |
Appeal from Willacy County Court; R. S. Dorsett, Judge.
Suit by Roy Roots against Roy Campbell & Co. and others. Judgment for plaintiff, and defendants appeal. On a motion to dismiss the appeal.
Motion overruled, and judgment affirmed.
Jesse G. Foster, of Raymondville, for appellants.
A. B. Crane, of Raymondville, for appellee.
Roy Campbell & Co., a firm composed of Roy Campbell and Dan Pue, the appellants herein, instituted suit No. 339 in the county court of Willacy county against H. A. and R. W. Darling to recover the sum of $369.60, with interest and costs. Ancillary to their main suit appellants also filed a garnishment proceeding, No. 340, against Roy Roots, appellee herein, and caused a writ of garnishment to be issued and served upon him.
The appellants recovered judgment against H. A. and R. W. Darling at the June term of court for the amount sued for, and subsequent to obtaining said judgment, but at the same term of court, procured a default judgment in cause No. 340 against the garnishee for $369.60, interest and costs. After the expiration of the June term and the issuance of execution on the judgment against him, Roy Roots, on July 14, 1932, instituted this suit in the county court of Willacy county against Roy Campbell, Dan Pue, and H. T. Cragg, the sheriff of said county, to enjoin enforcing the execution and to set aside the judgment rendered against him in suit No. 340. He pleaded that the writ issued and served upon him was fatally defective, that the judgment was invalid, and alleged a good defense to the garnishment suit. The day application therefor was made, a temporary injunction was granted, and on September 17, 1932, the case was heard on its merits before the court without the intervention of a jury, and decree entered adjudging that the writ of garnishment was defective, the judgment invalid, and that Roy Roots had a good defense to the suit in garnishment and the temporary injunction was made permanent, from which judgment this appeal is prosecuted.
The record discloses that the writ of garnishment issued by the clerk of Willacy county and served on the appellee by the sheriff was dated April 14, 1922, commanding such officer to summon Roy Roots, garnishee, to be and appear before the county court of said county at the next term thereof, to be held at Raymondville on the 6th day of June, 1922.
Article 4079, R. C. S. 1925, in part provides: "When the foregoing requisites have been complied with, the judge, or clerk, or justice of the peace, as the case may be, shall docket the case in the name of the plaintiff as plaintiff, and of the garnishee as defendant; and shall immediately issue a writ of garnishment, directed to the sheriff or any constable of the county where the garnishee is alleged to reside or be, commanding him forthwith to summon the garnishee to appear before the court out of which the same is issued, on the first day of the ensuing term thereof, to answer upon oath," etc.
Article 4082 provides, among other things, that: "The writ of garnishment shall be dated and tested as other writs."
In a garnishment proceeding, "the purpose of the writ is to cite the garnishee to appear at the time designated...
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...inquiries upon oath, and also to impound the assets or property of a debtor in the hands of the garnishee." Roy Campbell & Co. v. Roots, 60 S.W.2d 896, 897 (Tex. App.—Amarillo 1933, writ dismissed).566. At trial, Mumtaz testified that Merchant prepared the application for Writ of Garnishmen......
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