Simon v. Ash

• Decision Date: 03 November 1892
• Citation: 20 S.W. 719
• Parties: SIMON <I>et al.</I> v. ASH.
• Court: Texas Court of Appeals

20 S.W. 719

SIMON et al. v. ASH.

Court of Civil Appeals of Texas.

November 3, 1892.

Appeal from district court, Anderson county; F. A. WILLIAMS, Judge.

Garnishment proceedings by H. T. Simon, Gregory & Co. against Henry Ash. From a judgment for the garnishee, plaintiffs appeal. Reversed.

Gammage & Gammage, for appellants. Gregg & Reeves, for appellee.

PLEASANTS, J.

This appeal is from a judgment in a garnishment in favor of the appellee, Henry Ash, and against appellants, who were judgment creditors of one Theo. Ash. To the judgment of the court, and to its previous rulings upon motions made by appellants, numerous objections are urged.

The first error assigned is that the court erred in granting garnishee leave and further time to answer writ of garnishment, after having sustained appellants' exceptions to garnishee's original answer, and in refusing to render judgment for appellants for their debt against garnishee, upon motion of appellants, made to the court when it sustained their exceptions to the answer, on May 1, 1891. The garnishee was served with copy of appellants' garnishment on the 17th day of October, 1890, and on the 24th day of April, 1891, at the next term of the court after the service of garnishment, appellee answered that on the 17th day of October, 1890, he was not indebted to defendant, Theo. Ash nor was he then indebted to him; that on the 17th day of October, 1890, he was in possession of two certain lots of merchandise and some money, and that he held the same by virtue of a certain deed of trust executed by Theo. Ash on the 15th day of December, 1890, and that by said deed of trust he, the said Henry Ash, was authorized to sell said goods in due course of trade until sufficient money was realized to pay off certain debts in said deed specified, and, if such sum was not realized by the 1st of May, 1891, he was to sell the remainder of the goods at public auction; that a sufficient sum had not been realized to pay the debts, and that he was unable to say what amount of moneys would be realized until after he had disposed of the balance of the goods; that they would be sold for cash to the highest bidder on the 2d day of May proximo, and he prayed for time until after said sale, in which to make further answer; and he further answered that he knew of no other person who was indebted to Theo. Ash, or who had in their possession effects belonging to him. This answer is not as full and specific as an answer should be, and the court was right in sustaining exceptions to it; but it is insisted that it is so defective that the court should have treated it as a confession by the garnishee, and rendered judgment for the debt of appellants. To this we cannot assent. The garnishee cannot be said to have refused or neglected to make answer to either of the inquiries propounded to him in the writ. When the answer of a garnishee is defective, and exceptions to it are sustained, it does not follow that the court must treat the pleading as no answer, and visit upon the garnishee the penalty of failing or refusing to answer the writ. We do not think such a proposition can be sustained upon reason or by authority. The case cited by counsel (Freeman v. Miller, 51 Tex. 443) does not sustain the position. In that case the garnishee failed to answer one of the two questions embodied in article 192, Rev. St. We think the court did not err in refusing to render judgment for appellants, nor do we think there was error in granting appellee leave to file his amended answer at a later day of the term, and after the sale at auction of the remainder of the goods.

The next objection to the ruling of the court is that the court refused the motion of appellants, made and heard on the 18th day of May, 1891, to compel Theo. Ash, their judgment debtor, and for whom a subpœna duces tecum had been issued on the 27th of April, 1891, to produce and bring into court his books and invoices, showing his mercantile transactions from July 1, 1890, to December 15, 1890. Without here deciding whether, in a proper case, it would be the duty of the court to sustain such a motion, it is sufficient answer to this objection to say that this court is not in possession of data sufficient to enable us to determine whether or not there was error in refusing the motion. The record discloses the fact that Theo. Ash had ceased to be a resident of Anderson county, and was a resident of the city of San Antonio, and that the books and papers desired were in that city. We cannot, therefore, from the facts before us, hold that the court would have been justified in compelling Theo. Ash, under the pains and penalties of contempt, to produce his books and papers into court. The appellants, on the 21st day of May, just three days after their motion had been overruled, announced ready for trial, when this cause was called for trial, and the trial proceeded. Had they on that day made a motion, supported by proper affidavit, for a continuance or postponement of the trial to a later day of the term, for the purpose of producing the desired books and papers, to be used as evidence, we would have another and a different question before us. And the objections urged by appellee to this motion, that Theo. Ash is not a party to this suit, and that the books and papers are his private property, and therefore he cannot be compelled to bring them into court, nor can the appellants use them as evidence in support of their contest with the garnishee, we do not think are good. It is true that Theo. Ash is not nominally a party to this suit, but he is the judgment debtor of appellants, who are in this suit endeavoring to subject to the payment of their judgment property which they aver has been fraudulently conveyed to appellee. This suit is, then, but auxiliary to their former suit with Theo. Ash, and he has an interest in the issues formed between the parties to this suit; and he has certainly an interest in the property conveyed to the appellee, since the conveyance is but a mortgage, and not an assignment. We take it, then, that Theo. Ash, though not joined as a party defendant with the garnishee, is a party in interest. But even third persons, who have in their possession books or papers in which one of the parties has an interest, may be compelled to produce them; and by "interest," as the word is here used, we understand that, if the documents are material evidence for the party demanding them, such party has an interest in them, and their production may be compelled by either bill of discovery or by subpœna duces tecum. 3 Greenl. Ev. § 305. To this rule there are, of course, exceptions, but this case, in our judgment, does not fall within any of these exceptions. That these books and papers would be admissible in evidence for the purpose of contradicting the recitals in the deed is, we think, manifest. This deed,...