Cohn v. Tillman

Willie, Chief Justice. The failure to docket the garnishment proceedings against each of the garnishees was an irregularity, but not one that would affect the validity of the judgment, if the proceedings were otherwise regular. Sun Mutual Ins. Co. v. Seeligson & Co., 59 Tex., 3. But it was error to render judgment by default, final, against Cohn, instead of pursuing the course pointed out by statute for obtaining judgment against garnishees not resident in the county where the proceedings were commenced. Cohn was alleged to be a resident of Ellis county, and the writ of garnishment was directed to the sheriff of that county, and was served by him. When, therefore, he failed to put in an answer to the writ, it was the duty of the plaintiff to sue out a commilsion under article 195 of the Eevised Statutes, if he wished to obtain the answers of the garnishee. This he failed to do, and Cohn might well have concluded, that the plaintiff had abandoned the writ as against him. The writ did not notify him that unless he appeared at the proper time and filed his answer, a judgment would be taken against him, but that a commission would issue to take his answers as to his indebtedness to the defendants in the original suit, and his having effects of theirs in his hands. It was not, therefore, his duty to answer to the writ in order to prevent a judgment by default. The term of court to which the writ was returnable passed, and no judgment by default was taken; nor was the one from which this appeal is taken rendered till a year thereafter. If, in the meantime, the garnishee moved into Dallas county, the proper course would have been to have brought this fact to the attention of the court, and to have sued out process which would have notified the garnishee that his answer to the writ, and not to interrogatories, would be demanded. But, if he were bound to take notice of this without the service of additional process, there should be some showing in the record that he had removed into Dallas county within such period before the rendition of the judgment as afforded him a reasonable time for making his defense. Here there is no evidence upon this subject, nor that he ever did remove to Dallas county, except a mere recital in the judgment that he was, on the date of its rendition, “of Dallas county.” This may be conclusive as to that question, but not as to the time when he became a resident of that county. The previous proceedings fix his domicile in Ellis county, and leave it there. The recitals of the judgment show -a residence at its date in Dallas county. This recital would be true, if he had fixed his residence there on the very day the judgment was [100] entered up. It would obviously violate the spirit and meaning of the statute to allow a plaintiff to garnish a non-resident, take no steps to obtain his answers to interrogatories, but, after the lapse of more than a year, and the passing by of two terms of the court, to take a judgment by default against him at the third term, without notice, and upon the very day of his removal into the county where the proceedings were pending. We think the court erred in rendering judgment against the appellant, and the judgment as to him will be reversed and the cause remanded. Reversed and Remanded. [Opinion delivered April 20, 1886.]