Wilson v. Tidelands Club

• Decision Date: 18 March 1965
• Docket Number: No. 14510,14510
• Citation: 388 S.W.2d 485
• Parties: Vann C. WILSON, Appellant, v. TIDELANDS CLUB, Garnishee, et al., Appellees.
• Court: Texas Court of Appeals

Page 485

388 S.W.2d 485

Vann C. WILSON, Appellant, v. TIDELANDS CLUB, Garnishee, et al., Appellees.

No. 14510.

Court of Civil Appeals of Texas, Houston.

March 18, 1965.

Edward R. Baird, Houston, for appellant.

Lew W. Harpold, Hofheinz & James, Houston, for appellee Gene Austin.

COLEMAN, Justice.

This is an appeal from a summary judgment quashing a writ of garnishment. The motion for summary judgment was based on a plea of res adjudicata by reason of the quashing of a previous writ ancillary to the same suit between the same parties.

Appellant is the plaintiff in a pending suit for debt naming Gene Austin as defendant. This is the second of two ancillary garnishment proceedings. By judgment entered January 31, 1964, the first writ of garnishment was quashed. None of the pleadings in this proceeding have been included in the transcript before us. The judgment entered in that cause, No. 632,000-A, was attached to the motion for summary judgment and reflects that the writ issued in Cause No. 632,000-A was addressed to Tidelands Motor Inn, garnishee. It reflects that Tidelands Motor Inn, a proprietorship and garnishee therein, presented a motion to quash the writ of garnishment. The judgment further recites: '* * * and came Tidelands Club, a corporation, appearing herein as garnishee and as a stakeholder of impounded funds in the sum of $1,206.97 and by its attorney for the purpose of presenting its motion to quash said writ or garnishment. * * *' The judgment also recites that Lew W. Harpold, an attorney, appearing specially in the main suit under Rule 120a in behalf of Gene Austin, defendant intervened in Cause No. 632,000-A to present a motion to quash the writ of garnishment.

The judgment further shows that appellant and all of these parties appeared for a hearing and that after considering the pleadings, evidence and arguments of counsel, the court was of the opinion that all of the motions to quash should be granted and that the writ of garnishment addressed to Tidelands Motor Inn, garnishee, should be quashed; that Tidelands Club and Tidelands Motor Inn, garnishees, should be discharged from said garnishment; that the suit should be dismissed; and that the money temporarily impounded by virtue of the issuance and notice of the writ of garnishment should be released to Gene Austin.

The judgment continued:

'It is, therefore, ORDERED, ADJUDGED AND DECREED by the Court that all said motions filed herein to quash plaintiff's writ of garnishment issuing from this Court on November 22, 1963, and addressed to Tidelands Motor Inn, garnishee, be, and the same are hereby in all respects granted.

'It is accordingly ORDERED, ADJUDGED AND DECREED that said writ of garnishment be and it is hereby quashed and stricken; that Tidelands Club and Tidelands Motor Inn, garnishees, be, and they are hereby, discharged from said garnishment; that the above styled and numbered cause be, and the same is hereby, in all things dismissed as to Tidelands Motor Inn and Tidelands Club, garnishees, and garnishees' attorney's fees in the sum of $100.00 for representation of both garnishees are adjudged against plaintiff together with all other costs in this cause incurred.'

It is generally true that a judgment in a garnishment proceeding can be rendered only against the party named in the summons. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039.

Appellant contends that this rule is not applicable here because the judgment shows that Tidelands Club appeared voluntarily and subjected itself to the jurisdiction of the court. In Harrell v. Mexico Cattle Company, 73 Tex. 612, 11 S.W. 863, the court said:

'In ordinary actions, courts acquire jurisdiction over the persons of defendants, so as to render binding judgments against them by the service of...