Warner v. N.W. Fire Marine , 281 S.W. 1113 ( 1926 )

^* Writ of error granted June 9, 1926. The trial court found as a fact referred to in the statement above, but concluded as a matter of law that "there was no consideration for the release." The explanation of the apparent inconsistency lies in the fact, it is assumed, that the court thought the payment of any sum less than the total amount of the judgment was not a sufficient consideration for the release. But, as we understand it, that is not the law in this state. Merchants' Nat. Bank v. McAnulty (Tex.Civ.App.) 31 S.W. 1091; Id.,33 S.W. 963, 89 Tex. 124; Elgin City Banking Co. v. Self (Tex.Civ.App.)35 S.W. 953; Bates v. Bank, 32 S.W. 339, 11 Tex. Civ. App. 73; Watkin Music Co. v. Basham., 106 S.W. 734, 48 Tex. Civ. App. 505. In the Bates Case the rule was stated to be that —

"Where * * * a release is given to one of several obligors, and a reservation of rights purpose, the other obligors are not released intirely, but are responsible for their proportionate part of the obligation."

In the Basham Case it was held that the obligors not released were liable for the full amount instead of a proportionate part of the indebtedness unpaid.

It is settled in this state that, where twor or more persons are jointly indebted to a plaintiff, he is not entitled to the writ of garnishment without showing that none of them has property in his possession within this state sufficient to satisfy the indebtedness. Buerger v. Wells, 222 S.W. 151, 110 Tex. 566; Smith v. City Nat. Bank (Tex.Civ.App.) 140 S.W. 1145. Having concluded — erroneously, we think — that the release was ineffective, and that Rudd therefore never ceased to be liable to appellant on the judgment, the trial court properly, in that view, concluded, further, that the affidavit made the basis of the garnishment proceedings was fatally defective, in that it did not show that Rudd did not have property in his possession within the state sufficient to satisfy appellant's judgment. But it is plain, if the release, as we think, was effective, that Rudd thereafter not only was not jointly liable with appelle Oviett on the judgment, but that he was not liable thereon at all. In that view it was not necessary that appellant in his affidavit for the writ should have negatived the fact that Rudd did not have property in his possession sufficient to satisfy the judgment. He had a right to proceed, as he did, on the view that the joint liability of Rudd and Oviett to him had ceased, and that Oviett alone was liable to him on the judgment.

It follows from what has been said that we think the judgment is erroneous. It will be reversed and the cause will be remanded to the court below for a trial on its merits.