Cheshire v. Palmer

WILLSON, C. J. It appears from the 'caption of the transcript sent to this court that the cause tried [439] was the garnishment suit No. 2312 styled “E. P. Palmer v. Continental State Bank of Alto, Texas, and Alto State Bank of Alto, Texas, garnishees, and Lena Cheshire and J. W. Cheshire, defendants,” commenced September 30, 1930. It appears from the clerk’s certificate authenticating said transcript that it contains a true and correct copy (quoting) “of the record of all the proceedings had in this cause as the same appears of record and now on file in my office.” An examination of the transcript shows that, while it contains proceedings in said garnishment, suit No. 2312, it also contains proceedings in suit No. 2009, commenced hy said Palmer against said Lena Cheshire and J. W. Cheshire November 18, 1930, to recover the amount of a judgment he had obtained against them in 1927, and proceedings in garnishment suit No. 1009A by said Palmer against said Continental State Bank of Alto, Tex., also commenced said November 18, 1930. It appears that the writ of error on which the appeal was prosecuted was sued out in both said suit No. 2009 and said suit No. 2009A. It appears, further, that on December 10,1930, the writ of garnishment issued in suit No. 2312 was quashed, and that on the same day judgment for $1,040 was rendered in Palmer’s favor against appellant Lena Cheshire in suit No. 2009, and that on the same day judgment was rendered in Palmer’s favor against said Continental State Bank of Alto, Tex., as garnishee, for $999 in suit No. 2009A. In view of the facts stated, the course this court should pursue in disposing of the appeal is not clear. However, we think it sufficiently appears in said transcript and the statement of facts accompanying it (1) that the judgment on which the writ of garnishment was issued September 30,1930, was void as to plaintiff in error Lena Cheshire, because it was by default in the absence of proper notice to her; (2) that the recovery sought by Palmer in said suit No. 2009 was on said void judgment, and for that and other reasons the judgment rendered in said suit No. 2009 was itself void; and (3) that the judgment against the garnishee in suit No. 2009A was unauthorized and void because based upon the void judgment in said suit No. 2009. We have concluded we should dispose of the appeal (1) by reversing the judgment in suit No. 2009 and here rendering judgment that defendant in error take nothing against plaintiff in error Lena Cheshire by this suit, and (2) by reversing the judgment in suit No. 2009A and here rendering judgment that said defendant in error take nothing against said garnishee by that suit. The judgment to be rendered here will be in harmony with the conclusion stated. The costs of the suits in both this court and the court' below will bé adjudged against defendant in error Palmer.