Seinsheimer v. Flanagan

• Decision Date: 09 December 1897
• Citation: 44 S.W. 30
• Court: Texas Court of Appeals
• Parties: SEINSHEIMER et al. v. FLANAGAN.<SMALL><SUP>1</SUP></SMALL>

44 S.W. 30

SEINSHEIMER et al. v. FLANAGAN.¹

Court of Civil Appeals of Texas.

December 9, 1897.

Error from district court, Galveston county; William H. Stewart, Judge.

Action by S. J. Flanagan against Joseph Seinsheimer and others in which there was a judgment for plaintiff, and J. King Wallis was summoned as garnishee. Afterwards defendant Seinsheimer filed a replevy bond, as authorized by statute, and replevied the debt. There was a judgment against the garnishee, and also against Seinsheimer and his sureties on the replevin bond, and the latter bring error. Affirmed.

Davidson & Minor, for plaintiffs in error. R. W. Houk and Jos. H. Wilson, for defendant in error.

WILLIAMS, J.

The defendant in error, S. J. Flanagan, recovered a judgment in the district court of Galveston county against the firm of Freiberg, Klein & Co., composed of Moses Freiberg, Samuel Klein, and Joseph Seinsheimer, and against Seinsheimer and Klein individually, for the sum of $250, besides interest and costs. Thereafter, on July 27, 1896, Flanagan sued out a writ of garnishment on said judgment for service on J. King Wallis. On September 8, 1896, Seinsheimer filed a replevy bond, in accordance with article 225, Rev. St. 1895, which was signed, as sureties, by I. H. Kempner and Max Stiefel, who are co-plaintiffs in error with Seinsheimer. On the 3d day of October, 1896, the garnishee, Wallis, filed his answer to the writ as follows: "Now comes the garnishee, J. K. Wallis, and in answer to the writ of garnishment served upon him herein says that, except as hereinafter stated, he is not now, nor was, indebted to the said Joseph Seinsheimer when said writ was served on him; that during the month of July last (1896) he, the said garnishee, was boarding at the Grand Hotel, kept by Milton Powell; that for the said month of July he had agreed to pay the said Powell $50, but on or about the 20th of July he was notified by Joseph Seinsheimer that he had advanced some money to Powell on several accounts, and that his (the garnishee's) account had been transferred to him (Seinsheimer), and that when that bill was due on July 31st the said garnishee was to pay it to the said Seinsheimer, and that at that time he (the garnishee) supposed that he owed the said Seinsheimer $50;" and also asked that he be allowed a fee for answering the writ, and that Milton Powell be made a party, in order that he might be exonerated from double liability. On the 21st of November, 1896, judgment was rendered in the garnishment proceeding against the garnishee, Wallis, that the plaintiff, Flanagan, recover from Wallis the sum of $50, out of which amount plaintiff was to pay the costs of the garnishment proceeding and an attorney's fee of $25 for the garnishee, and that plaintiff should have his execution for $50 against Wallis. It was further ordered that the plaintiff recover from Seinsheimer, Kempner, and Stiefel the sum of $50, and that he have execution against them, but that the plaintiff should not in any event, recover more than $50; and that, if either Seinsheimer, Kempner, or Stiefel should pay that amount, it would satisfy the judgment against Wallis. This judgment recited that the garnishee appeared in person and by answer duly filed, and that evidence was introduced, and that the said Wallis answered that he supposed he was indebted to Seinsheimer to the amount of $50. There was no appearance entered for Seinsheimer or his sureties, and no other written pleading was filed by Wallis besides the answer above referred to. Seinsheimer and his sureties on the replevy bond prosecute this writ of error.

The first, second, and third assignments of error seek to reverse the judgment because of defects in the affidavit for garnishment. Some of the objections might have been held well taken, if they had been properly urged in the trial court, but the garnishee voluntarily appeared, and, without objection to the proceedings, submitted the matter to the court. He could not now be heard to urge these exceptions for the first time in this court. By article 225, above referred to, the defendant, after he had made replevy bond as therein provided, was authorized to make any defense which the garnishee could make in such a suit. Whether this would entitle him to object to such defects in the proceedings as those pointed out in these assignments of error, we need not now determine. If he was authorized to make them, he did not make them at the proper time, and in the proper manner. He necessarily has no greater rights, in this particular, than the garnishee would have. The same remarks reply to the objection urged in the fourth assignment to the return of the sheriff upon the writ of garnishment. Neither the garnishee nor the plaintiffs in error urged any such objection in the court below, but the garnishee voluntarily appeared, and answered the writ.

The fifth assignment of error complains of the judgment on the ground that it was based solely upon the written answer of the garnishee, and that such answer did not make it appear affirmatively that the garnishee was indebted to Seinsheimer, but did make it appear that he was not indebted to Seinsheimer, but that he was indebted to Milton Powell. The recitals of the judgment authorize the presumption that the question as to Wallis' indebtedness was submitted to the court orally, and that the evidence which was heard justified the court in finding that the indebtedness was to Seinsheimer. Such a finding would be at least consistent with the answer of the garnishee. It has been held that issues upon the answer of a garnishee can be made orally, by consent, and the recitals in the judgment authorize the conclusion that this...