Tripplett v. Hendricks

• Decision Date: 22 May 1919
• Docket Number: (No. 968.)
• Citation: Tripplett v. Hendricks, 212 S.W. 754 (Tex. App. 1919)
• Parties: TRIPPLETT v. HENDRICKS.
• Court: Texas Court of Appeals

212 S.W. 754

TRIPPLETT v.HENDRICKS.

(No. 968.)

Court of Civil Appeals of Texas. El Paso.

May 22, 1919.

Error from Eastland County Court; Cyrus B. Frost, Judge.

Application by S. F. Hendricks for writ of garnishment against the Citizens' National Bank of Cisco, in which J. W. Tripplett intervened.From an adverse judgment, the intervener brings error.Reversed and remanded.

J. R. Stubblefield, of Eastland, for plaintiff in error.

Allen Dabney and Scott & Brelsford, all of Eastland, for defendant in error.

HARPER, C. J.

Hendricks brought suit in the justice court against George Herring and J. M. Curtis for a bay mare, and alleged her value to be $75; sued out writ of sequestration, and by virtue of the writ the constable took possession thereof.Curtis executed a replevin bond with J. M. Tripplett(appellant here) and others as sureties, and retained possession.On March 20, 1911, the justice court entered its judgment for the plaintiff"that he recover the mare."

From this judgment Curtis appealed to the county court, Eastland county.On March 15, 1917, Hendricks, appellee here, filed in said county court affidavit for writ of garnishment against Citizens' National Bank of Cisco, wherein it is alleged that he, on March 20, 1912, recovered a judgment against J. M. Curtis and George Herring as principals and J. W. Tripplett et al., sureties on defendant's replevy bond for the sum of $140, "which said judgment is still in force and satisfied."Then follow other allegations required by the statute, and prays for writ of garnishment against said bank.The writ issued and the bank answered that it had in its hands $288 belonging to said Tripplett.

Tripplett intervened in the suit and filed general demurrer and special exception to the effect that the affidavit for garnishment shows that the judgment had been satisfied, and general denial, and specially pleaded:

"That the judgment [which is the basis for the writ] was rendered against him without notice to him and without his being a party to the suit; therefore, in so far as it adjudged costs against him, it is null and void.

"(2) That it is null and void because it having arisen in the justice court upon a petition to recover a horse, and nothing else, of the alleged value of $75, and judgment then entered for the horse, and not for its value, and Curtis having appealed to the county court from said judgment, and that the issue of the ownership of the horse has not yet been determined, therefore it is not a final judgment.

"(3) That the county court was without jurisdiction to render a judgment for more than $75, the alleged value of the horse."

The plaintiff filed special exception to the answer next above, which was sustained.Tripplett replevied the money in bank by filing bond.

Tried without a jury, and judgment rendered against Tripplett for the whole amount of the funds, $288, and for costs of the garnishment proceedings from which the case was taken by writ of error to the Court of Civil Appeals of Second district and transferred by the Supreme Court of this district for review.

Opinion.

The first question is, Was the application and affidavit for writ of garnishment sufficient upon general demurrer because there was no allegation that the judgment had been kept alive by issuance of execution?Appellant cites Friedman v. Early Grocery Co., 22 Tex. Civ. App. 285, 54 S. W. 278, in support of his contention.Notwithstanding these decisions, we think a dormant judgment will support the writ.Citizens' Bank & Trust Co. v. Rogers, 170 S. W. 258, and cases there cited.

Again, it is urged that the court erred in sustaining an exception to the defendant's answer above quoted, upon the ground that the facts alleged, if proved, would establish that the judgment was void.The matters alleged, if proved, would not render the judgment void.

Take the first plea, that the judgment was rendered against him without notice; judgment against the sureties on...