Smith v. Security Inv. Co.

• Decision Date: 12 April 1929
• Docket Number: (No. 517.)
• Citation: 16 S.W.2d 926
• Parties: SMITH v. SECURITY INV. CO.
• Court: Texas Court of Appeals

16 S.W.2d 926

SMITH v. SECURITY INV. CO.

(No. 517.)

Court of Civil Appeals of Texas. Eastland.

April 12, 1929.

Error from Taylor County Court; Tom K. Eplin, Judge.

Suit by W. J. Fulwiler and others, doing business as the Security Investment Company, against J. T. Sanders, in which writ of garnishment was served upon A. J. Smith. Judgment for plaintiffs, and garnishee brings error. Reversed and remanded.

Smith & Smith, of Anson, for plaintiff in error.

Frank E. Smith, of Abilene, for defendant in error.

FUNDERBURK, J.

W. J. Fulwiler, J. H. Beasley, and E. H. Lyon, doing business under the name of Security Investment Company, brought suit in the county court of Taylor county against J. T. Sanders to recover judgment for debt in the sum of $215. Upon affidavit therefor a writ of garnishment was issued to and served upon A. J. Smith, a resident of Jones county. Smith in due course answered that he was indebted to Sanders, the defendant, in the sum of $208.33, which amount had been collected from the Continental Casualty Company through an award made by the Industrial Accident Board of the State of Texas as compensation for an injury sustained by the said J. T. Sanders while employed and working for the Dallas Transportation Company. Without any other pleading by either the plaintiff or the garnishee, the court, on the 21st day of January, 1928, entered judgment against the garnishee for the sum of $208.33, with the provision that execution issue. From this judgment Smith, the garnishee, has prosecuted writ of error and has filed in this court a transcript. According to the record, J. T. Sanders, defendant, was not made a party to the garnishment suit, nor did the garnishee pray that he be made a party. Upon this state of the record plaintiff in error asks us to hold that the judgment of the trial court rendered on the answer of the garnishee, and which permitted the plaintiff to subject to his debt the fund exempt from garnishment by provision of R. S. 1925, art. 8306, § 3, is erroneous and should be reversed.

Defendants in error have, upon leave granted, filed a statement of facts, the purpose of which is to show that the court below heard evidence from which it was justified in concluding that the defendant Sanders had waived the exemption disclosed in the answer of the garnishee.

R. S. art. 4086, provides that if it appear from the answer of a garnishee that he is not indebted to the defendant, etc., the court shall enter judgment discharging him. By article 4088 it is provided that should it appear from the answer or "should it be otherwise made to appear and be found by the court" that the garnishee is indebted to the defendant, judgment shall be rendered for the amount acknowledged to be due, or for the full amount of the judgment, interests, and costs. Article 4094 provides that in case the plaintiff should not be satisfied with the answer of the garnishee, he may controvert the same by his affidavit, stating that he has good reason to believe, and does believe, that the answer of the garnishee is incorrect, stating in what particular he believes the same was incorrect. The same statute also provides that the defendant may, in like manner, controvert the answer of the garnishee. By article 4096 it is provided that where the garnishee (other than a foreign corporation) is a resident of another county, and his answer is controverted, the trial of the issues thus presented shall be had in the county of the garnishee's residence.

It is very clear that if the judgment in this case for justification is dependent upon the court having found as a fact that the indebtedness acknowledged by the garnishee was not compensation insurance, there was no pleading by which the court's jurisdiction was invoked to make an adjudication of that matter binding upon the garnishee or the defendant Sanders. Garnishee having answered as to the amount of the indebtedness and having stated the facts showing that it was exempt from garnishment, he was under no duty to take any further notice of the case, in the absence of due service of notice that his answer was controverted.

This brings us to the question presented here as to whether or not the court's jurisdiction was invoked so as to justify the judgment rendered on the ground that the defendant Sanders having the power to waive the exemption, in fact did so. As already stated, Sanders was not a party to the garnishment proceeding. The judgment under attack does not recite any appearance by him. Not only was there no controverting plea to the answer of the garnishee, but there was no plea of any kind designed to avoid the legal effect of the allegations as to the exemption such as showing a waiver of the exemption. It is well settled as a general rule that one relying on proof of waiver of an alleged or admitted right must allege and prove it. Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979; Marti v. Wooten (Tex. Civ. App.) 217 S. W. 447; American National Life Ins. Co. v. Rowell (Tex. Civ. App.) 175 S. W. 170; East Texas Fire Insurance Co. v. Brown, 82 Tex. 631, 18 S. W. 713; St. Paul Fire & Marine Ins. Co. v. Hodge, 30 Tex. Civ. App. 257, 70 S. W. 574, 71 S. W. 386; Alling v. Vander Stucken (Tex. Civ. App.) 194 S. W. 443; Moseley v. Bradford (Tex. Civ. App.) 190 S. W. 824; Murchison v. Mansur-Tibbetts Implement Co. (Tex. Civ. App.) 37 S. W. 605; Moody & Co. v. Rowland, 100 Tex. 363, 99 S. W. 1112; Middleton v. Moore (Tex. Civ. App.) 289 S. W. 1045; Shelton v. Lemmon (Tex. Civ. App.) 268 S. W. 177; Swift v. Roach (Tex. Civ. App.) 266 S. W. 846.

It is unnecessary for us to determine whether this rule is applicable here, in the absence of any showing that either the garnishee or Sanders was present or had any notice that the court was hearing evidence to determine whether the exemption set up had been waived. We think clearly the court was not authorized upon the record presented here to make a binding adjudication of that fact so far as either garnishee or Sanders may be concerned. American Surety Co. v. Bernstein, 101 Tex. 189, 105 S. W. 990; Reed v. First State Bank (Tex. Civ. App.) 211 S. W. 333.

Considering the evidence disclosed by the statement of facts, it fails to support the judgment. Aside from the fact that there was no pleading of a waiver, there was no party before the court to be bound by a finding of the existence of the waiver. The garnishee was not bound, because he was not notified of the raising of such issue. Sanders was not bound, because he was not a party...