Curtis v. Ford , 10 L.R.A. 529 ( 1890 )

GAINES, Associate Justice.

This is an appeal from a judgment in a garnishment proceeding. The writ of garnishment was sued out in the same case and at the same time as that in the case of this same appellant against the Henrietta National Bank, ante —, this day decided. The writs are alike, but this appeal presents some questions in addition to those presented by the other. In the present case there was an intervention, a contest, and a trial by jury.

Hpon the trial the plaintiff offered in evidence his writ of garnishment, which upon objection was excluded by the court. The ground of objection was that the writ did not show the amount of the debt claimed by the plaintiff of the defendant.

We have this day held in Curtis v. Bank, supra, that the omission did not invalidate the writ. But we see no propriety in introducing in evidence the process or pleadings in a case, and hence can not hold that the court committed error in its ruling. The writ was not evidence tending to establish the affirmative or the negative of any issue made in the case. Nor did the court err in refusing to allow it to be amended. It needed no amendment in order to give it validity.

The'court erred, if at all, in instructing the jury to find for the garnishee as against the plaintiff and in favor of the intervenor as against the garnishee. If either the writ was invalid or if the fund was not subject to garnishment the instruction was not erroneous. In addition to the failure of the writ to show the amount claimed by the plaintiff of the defendant, the appellees also insist that it was bad because it was issued by the clerk against himself as garnishee. We are cited to no authority upon the question and have been able to find none, but our conclusion upon the other point makes it unnecessary to decide it.

The fund which was sought to be subjected to garnishment in this case came into the hands of the garnishee as clerk of the District Court of Clay County under the following circumstances: Wells, the defendant in the suit in which the present garnishment proceedings were instituted, had brought suit in the District Court of Clay County against E. Dawson et al., and had sequestered a stock of cattle. The cattle were sold by order of court and the proceeds had been paid by the sheriff into the hands of Ford, the present garnishee, as the clerk of the District Court. The cause was removed to the United States Court, but the money remained in the hands of Ford. Upon the determination of the case the United States Court adjudged that the fund belonged to Wells. It was before this adjudication that the writ of garnishment was sued out and served, but the answer of the garnishee was filed afterwards. The pleadings and evidence upon the trial showed these facts. Appellant insists that after the judgment of the United States Court the money became subject to the writ of garnishment. There are authorities which hold that after a case has been determined and the right to a fund in the hands of an officer of the court has been adjudged to be in a party to the suit, the reason which forbids the garnishment of the money no longer exists, and that therefore it is subject to the writ. This court has, however, taken the contrary view, and has in effect held that the fund is not subject so long as it remains in the custody of the law-—that is to say, in the hands of the officer who is entrusted with its keeping. Pace v. Smith, 57 Texas, 555. It is urged that there is a difference between the case cited and the one before us; but we think there is no material difference in so far as the question under consideration is concerned. It is a matter of no moment how the money was kept by the clerk. He is liable for it only as custodian of the court. For is it important to determine whether it ought to have been transferred to the custody of the Federal court or whether or not the State court has power to make any order in respect thereto. He holds the money in his official capacity and in that capacity only. Upon the authority of the case cited we conclude the funds in the hands of the garnishee were not subject to the writ.

But appellant further-insists that since he amended his pleading, showing that Wells was a nonresident, and that the money in controversy was the only fund from which he could obtain satisfaction of his debt, the court should have granted him relief upon equitable grounds. If the writ of garnishment does not apply he has no adequate remedy at law. Whether there be any equitable remedy by which a fund of this character may be reached may be doubted, but we are of opinion that if any such exists it was not proper to apply it in this ¡oroceeding. This was a contest between the plaintiff in garnishment, the garnishee, and an intervenor; and we think the plaintiff could not by amendment change the proceeding from a legal to an equitable action without making the defendant Wells a party. We do not wish to be understood as deciding that a gamishment proceeding could be so changed in any case, or even that equity gives a remedy by which a fund of this character may be reached.

There was no error in allowing the garnishee his attorney fees as a part of the expense of making his answer. Willis v. Heath, 75 Texas, 124; Johnson v. Blanks, 68 Texas, 495.

The effect of our decision is to hold that the court by the process of garnishment acquired no jurisdiction over the money in controversy. It results from that conclusion that the court had no power to adjudge the fund to the intervener. So much of the judgment seems to us to be fundamentally wrong. It will accordingly be reformed in that particular and affirmed.

Reformed and affirmed.

Delivered October 24, 1890.