Freeman v. Miller , 51 Tex. 443 ( 1879 )

Bonner, Associate Justice.

David Freeman, a resident citizen of Galveston county, was garnished at the instance of M. D. Miller, in a suit brought by him in "Williamson county against Negbaur & Robins. On failure of Freeman to answer, commission, under the statute, issued to Galveston county, propounding to him the three statutory questions:

1. What he was indebted to the defendants Negbaur & Robins.

2. What effects of the defendants he had in his possession at the date of the serving on him of the writ of garnishment.

3. What credits or effects of the defendants were in the hands of any other person, and what person.

In response to the first interrogatory, the garnishee answered that he was not indebted to the defendants, but that they were indebted to him, and failed to answer the other two questions. No reason is shown in the record for this failure.

Exceptions were taken by Miller, because the garnishee had failed to answer the second and third interrogatories, and judgment was asked and obtained against him for the amount of the judgment rendered against the defendants Negbaur & Robins. The record does not show any separate action of the court upon the exceptions, but, after reciting that the garnishee had failed to appear and answer after due call, judgment was rendered against him.

Our statute provides that if the garnishee shall fail or refuse to appear and answer the interrogatories, it shall be lawful for judgment to be rendered against him for the amount of that against the defendants. It does not, however, prescribe the practice under the particular circumstances presented in this case, where only one of the interrogatories is answered; and we are left to adopt that construction which, in our opinion, will best conform to the spirit and intention of the law and the general practice of this court in analogous cases. Different rules of practice, seem to prevail in different States, owing doubtless to want of uniformity in the several statutes.

Although proceedings by garnishment should be strictly construed, yet when the statute prescribes the precise questions to be asked and requires that they shall be answered, under the penalty of liability to judgment, we think it the proper practice to require the garnishee to comply with the statute and make full answer. This is the rule prescribed in the Eevised Code of 1876, which will soon govern in such cases. (Rev. Code, arts. 203, 204.) If a different practice were adopted, then it would be in the power of the garnishee, either by evasion or neglect, to so delay the progress of the proceedings against him as to impair, if not defeat, the objects of the statute.

Mr. Drake says: “The important points to be attained in framing a garnishee’s answer are fullness and explicitness. The absence from an answer of either of these qualities might in many cases subject the garnishee to a judgment against him.” (Drake on Attach., sec. 634.) That the garnishee must answer all the questions in a plain and distinct manner, or he will be made liable; (Id., secs. 636, 636a;) and that his answer must be taken most strongly against him. (Id., secs. 656, 657.)

We are further of opinion, that in a case like the one now before the court, where the garnishee, without any excuse therefor shown on the record, fails to make any answer to one or more of the statutory questions, then the court is authorized to proceed as though no answer had been made, and render judgment accordingly; and that if from accident, mistake, or other cause, injustice has been done the garnishee, he himself must take the initiative, and, by -motion made in due time, or other proper proceedings, seek to set aside the judgment.

Mr. Drake says that in many of the States a judgment by default may be taken against a garnishee upon his failure to answer; that by such failure he is prima-facie guilty of negligence, and cannot obtain relief unless, by rebutting this presumption of negligence, he can induce the court to set aside the judgment and permit him to answer.

This we think the proper practice, and one which accords with the decisions of this court in analogous cases. (Dowell v. Winters, 20 Tex., 797.)

It is contended in argument that the officer’s return to the depositions fails to show that legal process issued to compel the garnishee to appear and answer, and that therefore the officer did not have jurisdiction, and hence, in law, there was no failure to answer.

We are of opinion that the rule which prevails, that, as between two contesting creditors, the garnishee has no right to accept or waive service of the proceedings, thereby favoring one party at the expense and injury of another, does not apply in the suit of a creditor against the garnishee himself on his answer, when he has voluntarily appeared before the officer, no rights of an opposing creditor being involved. (Drake on Attach., sec. 451b.)

The case now before the court is different from that of Adams v. McCown, 15 Tex., 349, where the failure to answer was occasioned by a defect in the commission, the clerk having failed to insert the proper interrogatories therein.

In the case of Lockhart v. Bowles, Court of Appeals, 1 Tex. Law Jour., 396, it seems that a full answer had been-made, although not sworn to. Ho objections were taken to the same, but it was contested. After the cause had been’ continued, and in the absence of the garnishee, judgment by default was rendered against him; and upon this and another ground it was properly decided that there was error.

That portion of the statute (Paschal’s Dig., art. 157) which' provides that judgment may be rendered against the garnishee for all sums of money or effects of the defendant which • may be proved to be due by the garnishee or in his possession, does not apply to a case like the present, but to one in which the answer of the garnishee is contested.

There being no error in the judgment below, the same is affirmed.

Affirmed.