State Bank & Trust Co. v. W. O. Horn & Bro.

• Decision Date: 25 May 1927
• Docket Number: (No. 7121.)
• Citation: 295 S.W. 698
• Parties: STATE BANK & TRUST CO. v. W. O. HORN & BRO., INC.
• Court: Texas Court of Appeals

295 S.W. 698

STATE BANK & TRUST CO. v. W. O. HORN & BRO., INC.

(No. 7121.)

Court of Civil Appeals of Texas. Austin.

May 25, 1927.

Appeal from District Court, Dallas County; E. E. Hurt, Special Judge.

Action by W. O. Horn & Bro., Inc., against the State Bank & Trust Company, as garnishee. Judgment for plaintiff, and the garnishee appeals. Affirmed.

Henry Yeager, of Dallas, for appellant.

Cockrell, McBride, O'Donnell & Hamilton, of Dallas, for appellee.

McCLENDON, C. J.

Appeal by the State Bank & Trust Company, which we will call the bank, from a judgment against it as garnishee in favor of W. O. Horn & Bro., Inc.

The bank urges four propositions, which we will consider in the order presented:

(1). It is contended that, since its answer showing nonliability was filed September 4, 1923, and the controverting affidavit was not filed until April 3, 1924, the court was powerless to render the judgment.

This proposition is rested upon the following provision of subdivision 11 of article 2092, R. S. of 1925:

"The plaintiff in garnishment shall have 15 days after the garnishee's answer is filed within which to controvert the same if he so desires."

This provision is a part of the practice act of 1923, page 215, which relates to certain counties in the state, and applies to the district courts of Dallas county. This provision of the act has not been construed. The record shows that the parties went to trial on certain issues recited in the judgment, and no objection was made by either party to proceeding under the pleadings, the issues formed, and the evidence introduced. The point now urged by appellant is presented for the first time on appeal without assignment of error as fundamental. There is nothing in the language of the statute above quoted which intimates that the plaintiff in garnishment may not controvert the garnishee's answer after the expiration of 15 days. The manifest purpose of the provision was to give the plaintiff in garnishment 15 days as a matter of law within which to controvert the garnishee's answer, after which time the garnishee no doubt has the right, in the absence of a controverting affidavit, to have judgment entered discharging him thereon. But until judgment is rendered the court without question has jurisdiction over the case, and the parties may file pleadings or amended pleadings which are not prohibited by law, and which are allowed by the court, so long as discretion in such allowance is not abused.

In the absence of objection to going to trial upon the controverting affidavit as filed, or of some showing of injury by permitting it to be filed and considered, we think the failure to file it within the time prescribed by law was a mere irregularity, and was waived.

The general rule is that, where pleadings are required to be filed within a specified time, they may be filed thereafter, provided the court has not in the meantime rendered its judgment. Bateman v. Maddox, 86 Tex. 546, 26 S. W. 51; Boles v. Linthicum, 48 Tex. 220; Stout v. Myers (Tex. Civ. App.) 242 S. W. 1109. We see no reason why this general principle should not apply to the statute in question. The garnishment statutes do not discharge the garnishee ipso facto upon filing an answer showing nonliability which is not controverted within a specified time. They require a judgment of the trial court to discharge the garnishee, and until such judgment is rendered the court has jurisdiction over the case. It may be true that the plaintiff in garnishment might lose the right to file a controverting affidavit to the garnishee's answer through laches, but clearly it cannot be held that the delay in the present case constituted such laches as a matter of law. The first proposition is overruled.

(2). It is urged that the court was without power to render a moneyed judgment against the garnishee, because plaintiff in garnishment did not controvert that portion of the answer denying indebtedness to the defendant in the principal case, but only controverted that portion denying that the principal defendant owned stock in the bank.

The affidavit upon which the garnishment was based alleged that plaintiff in garnishment had reason to believe, and did believe that the bank was indebted and had effects belonging to the principal defendant, and that the latter was the owner of shares of stock in the bank. The writ required the bank to answer under oath with reference to indebtedness to and effects of the principal defendant, what other persons were so indebted or had effects, and the number of shares, if any, the principal defendant owned in bank. The answer of the bank covered by denial each of the matters as to which the writ required it to answer. The controverting affidavit merely alleged that plaintiff in garnishment had good reason to, and did, believe that the principal defendant owned at least ten shares of stock in the bank. The trial court's judgment recites that the plaintiff and defendant in garnishment appeared by their respective attorneys, announced ready for trial, and that the following issues were formed:

"As to the amount of stock held by the debtor mentioned in the writ of garnishment in the State Bank & Trust Company, and as to the amount of funds held by the State Bank & Trust Company at the time the writ of garnishment was served and the amount of funds which passed into the possession of the State Bank & Trust Company belonging to the debtor mentioned in the writ of garnishment, between the date of the service of the writ of garnishment herein and the date of the filing of the answer in garnishment herein."

Article 4095, R. S. 1925, provides:

"If the garnishee whose answer is controverted, is a resident of the county in which the proceeding is pending, an issue shall be formed under the direction of the court and tried as other cases."

This article immediately follows that relating to traverse of the garnishee's answer. It was held in Kelly v. Gibbs, 84 Tex. 143, 19 S. W. 380, 563, that the allegations setting up the issues formed under this article need not be under oath, and that by consent such issues might be submitted orally. There was no objection to the issues recited in the judgment upon which the parties went to trial, or to the evidence; and clearly the contention now urged was waived, unless the court was wholly without jurisdiction to render judgment based upon indebtedness of the garnishee to the defendant, in the absence of a controverting affidavit directed towards that particular matter. As noted above, the original affidavit upon which the garnishment was based alleged such indebtedness. This the bank specifically denied under oath. When the issues upon which the case was tried were formed, if there was any objection thereto, it should have been then urged. Generally speaking, when a party goes to trial upon issues recited in the judgment, and the record shows no objection thereto, this amounts to consent to trial upon the issues thus presented and to a waiver of the necessity for specific pleading thereon. Jurisdiction had already been obtained over the garnishee and the subject-matter embodied in the issues formed, by service of the writ. We can perceive of no inherent objection to a holding that the garnishee has the power to waive altogether a controverting affidavit as well as to waive the submission of any issues which the court might frame. No question of fundamental jurisdiction is involved in such holding, and the record in the present case negatives any injury thereby, for the judgment, in so far as concerns the amount...