Durham v. Scrivener , 228 S.W. 282 ( 1920 )

I dissent from the judgment of this court overruling the motion for a rehearing, for the following reasons:

(1) The right to have a writ of garnishment, upon the ground that the plaintiff has obtained a judgment against the defendant in the main suit, means that he has obtained a final judgment in such cause.

(2) A judgment is not final until the time for perfecting an appeal therefrom has expired. The time for such appeal had not expired when the garnishment was sued out herein.

(3) No judgment, except by default, can properly be rendered without some evidence to support it. The evidence necessary to support a judgment in garnishment is the judgment against the principal debtor. Where such judgment has been rendered, the court will take judicial cognizance of the same, but if an appeal has been taken from such judgment, the court will also take judicial cognizance of that fact, which fact so far suspends the judgment against the principal debtor that it cannot be considered in evidence. Railway Co. v. Jackson, 85 Tex. 608, 22 S.W. 1030; Waples-Platter Co. v. Railway Co., 95 Tex. 486, 68 S.W. 265,59 L.R.A. 353; Dodson v. Hardware Co., 162 S.W. 954; Van Natta v. Van Natta,200 S.W. 907.

The effect of each of these cases is to hold, where a judgment has been appealed from by either a cost bond or affidavit in lieu thereof, or by a supersedeas bond during the pendency of such appeal, this "deprives the judgment of that finality of character necessary to entitle it to admission in evidence, in support of the right or defense declared by it." The only exception to this rule is where such judgment is a link in the title of a third party, who has purchased under execution issued on such judgment, when no supersedeas bond was given. This exception is by force of the statute. I am unable to differentiate these cases from the instant case, in so far as the application of this principle is involved.

The judgment in the garnishment proceeding is ancillary to the judgment in the main case, and must stand or fall with it. Bergman v. Bank,141 S.W. 154; Townsend v. Fleming, 64 S.W. 1006, and authorities there cited; Studebaker v. Gerlach, 192 S.W. 548.

The view which I take of this case renders it unnecessary for me to express an opinion as to the effect of the writ issued by the clerk of the trial court, recalling the writ of garnishment, or as to whether the judgment in garnishment is a final judgment.

The enforcement of the judgment in the ancillary case is, in effect, the enforcement of the judgment in the main case, and is, I think, therefore, an invasion of our jurisdiction to determine on appeal of such judgment whether or not the same shall be enforced.