Wise & Jackson v. Nott

HALL, C. J. The appellee sued Wise & Jackson, a partnership alleged to be composed of W. A. Wise, —■—■—■ Jackson, and C. C. Peters, for $600 rent claimed to be due him for a lot in Burkburnett. Based upon that action, he sued out a writ of garnishment against the Humble Oil & Refining Company. The appellee in this ease recovered a judgment in the principal action against the firm of Wise & Jackson, which has this day been affirmed by this court. The Humble Oil & Refining Company answered in this case, and Wise & Jackson moved the court to quash the affidavit, bond, and writ of garnishment upon grounds hereinafter discussed. The motion to quash was overruled, and a trial upon the merits resulted in a judgment in favor of Nott against the Humble Oil & Refining Company in the sum of $360, with interest from March 11, 1923, at 6 per cent., and costs amounting to $16.85. Judgment was also rendered against Wise & Jackson as principals and R. B. Fisher and J. H. Aynesworth as sureties upon their re-plevy bond. The first contention urged by the appellants is that the court erred in not quashing the affidavit and bond for garnishment, for the reason that the affidavit does not staté the initials of the defendant Jackson nor otherwise identify him. The affidavit sufficiently identifies the original case without stating the initials of Jackson, and, since the statute does not expressly require that the names of the defendants shall be stated in the affidavit, we think it is sufficient. Dickinson v. First State Bank of Blackwell (Tex. Civ. App.) 185 S. W. 674. The bond for garnisjtHient which was appended to the affidavit, boih being filed at the same time, is sufficient, since it, whether considered separately or apart from the affidavit, identifies the original cause of action by number and otherwise. This contention is without merit. It is further contended by appellants that Nott’s claim is unliquidated, and is of such a character as will not support a garnishment proceeding. We cannot assent to this proposition. This is not an action for damages growing out of a tort. Plaintiff’s claim in the original suit arises out of an implied contract. “From its very origin, garnishment has most often been authorized in personal actions founded oil contract, express or implied.” 28 C. J. 28, 29, § 21. “Sometimes it is specifically required that, in order to support garnishment, the claim must be liquidated. Sometimes the equivalent of such requirement is found in other statutory terminology as construed by the courts. The test of liquidation has been held to lie in whether the demand of itself is capable of definite ascertainment at the time of the action. Generally, technical liquidation is not required, it being held that it is sufficient if the rule for the assessment of damages is stated, or if the amount of the claim is capable of definite averment. A sanction of garnishment in actions for damages founded on contract has been held to authorize the remedy in actions upon contracts for certain or stated amounts, and the same has been held under a sanction of garnishment upon debts, claims and demands generally.” Id. 29, 30, § 23. There is no uncertainty as to the rule governing the amount of Nott’s recovery in this case. The uncertainty, if any, arises upon only the rental value of the lot. The cases cited by appellant have to do with the debt due from the garnishee to the defendant in the principal action, and have no application here. The test prescribed, quoted above from Corpus Juris has been adopted in this state. Stiff et al. v. Fisher, 2 Tex. Civ. App. 346, 21 S. W. 291; Evans et al. v. Breneman (Tex. Civ. App.) 46 S. W. 80; McKay v. Elder (Tex. Civ. App.) 92 S. W. 268; Hall v. Parry (Tex. Civ. App.) 118 S. W. 561. After the writ of garnishment was served in this case, Wise & Jackson filed a replevy bond, as required by the' statute, and received the impounded fund from the hands of the garnishee. Judgment was entered against the garnishee, and also against the appellants and the sureties upon the replevy bond. The judgment does not award execu *1112 tion against.tie garnishee. This is in accordance with the statute and the recognized procedure in this state. Plowman v. Easton, 15 Tex. Civ. App. 304, 39 S. W. 171; Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30; Tinsley v. Ardrey, 26 Tex. Civ. App. 561, 64 S. W. 805. Upon filing the bond, the garnishee became a nominal party only. The bond takes the place of the debt garnished, and no judgment awarding execution against the garnishee should be rendered. Griswold v. Tarbell et al. (Tex. Civ. App.) 242 S. W. 324. By executing and delivering the bond, and making themselves parties in the garnishment proceeding, the principal and sureties upon the bond waived all defects in. the proceeding, which did not go to the question of jurisdiction. Griswold v. Tarbell, supra, and authorities cited. 28 C. J. 365, 366, § 582. The judgment is affirmed.