Kelly v. Gibbs , 84 Tex. 143 ( 1892 )

This is a proceeding in garnishment, instituted August 31, 1,891, by Mrs. S.E. Gibbs, executrix of the estate of Sanford Gibbs, deceased, against Hawkins Kelly, as a debtor of A.J. Ward. The affidavit in garnishment, alleging the grounds therefor provided, is founded upon a judgment charged to have been recovered by Sanford Gibbs in the District Court of Walker County, on April 12, 1878, for $1507, besides interest, against Ward, Dewey Co., a firm composed of A.J. Ward, E.C. Dewey, and Nathan Patton.

September 29, 1891, Kelly answered in the negative, in writing and under oath, the several statutory questions suggested in the writ.

October 12, 1891, Mrs. S.E. Gibbs filed an affidavit controverting the garnishee's answer. Prefixed to the statement of facts is a statement by the trial judge, that "the parties agree to join issue orally on the garnishee's answer. The defendant garnishee files general denial, or same is considered filed. The plaintiffs replication is," etc.

October 14, 1891, the court, rendered judgment for appellee against appellant for $80 and costs, from which this appeal is prosecuted.

The court found it to be a fact that there was a valid and unsatisfied judgment in favor of plaintiff's testator, Sanford Gibbs, against A.J. Ward and others, as alleged in plaintiff's affidavit. Appellant complains of this conclusion, because there was no evidence showing the existence of the judgment in question.

After the filing of an answer sufficient to prevent a judgment by default, and an affidavit controverting this answer, our statute (art. 213, Rev. Stats.) provides, that "an issue shall be formed under the direction of the court and tried as other cases." In this case such an issue was formed, and by consent of parties it was submitted orally. It was not necessary that the allegations setting out the issue should be under oath. Ins. Co. v. Willis Bro., 70 Tex. 12. In joining issue, it appears that the defendant pleaded the generaldenial. This, in our opinion, cast upon the plaintiff the burden of proving the existence of the judgment which was at the foundation of the proceeding. As the record shows that such proof was not made, the judgment is erroneous.

Kelly, the garnishee, was a tenant of Ward, the judgment debtor. The court found that Kelly owed Ward $80 for a mule which the latter had furnished him for the purpose of enabling him to make a crop of corn and cotton during the year 1891. The court, after decreeing a recovery of $80, in effect adjudged, "that Mrs. Sallie E. Gibbs, executrix of Sanford Gibbs, deceased, be and is here now subrogated to all the rights, remedies, and liens now owned, held, or controlled by A.J. Ward against the mule described in plaintiff's affidavit, and the crop of corn and cotton raised by Hawkins Kelly on land rented from A.J. Ward during the year 1891."

Appellant complains that this judgment is erroneous, because there is no description as to the amount or value of said crops." The judgment, in this case is for $80 — a sum certain. The lien under the statute (Rev. Stats., art. 3107) extends to the "crop" raised on the rented premises. The description in such a case is necessarily vague. Bourcier v. Edmondson,58 Tex. 675. It is therefore not necessary that the "amount or the value" of the crops should be ascertained in the judgment. It would appear, however, that the laud on which the crop was raised should be more clearly identified than was done in this instance. It was certainly in the power of the pleader to give a more definite description of the rented premises than is contained in the expression, "land rented from A.J. Ward during the year 1891." Bourcier v. Edmondson, supra; Murray v. Land,27 Tex. 89.

It is contended, that it was error to render judgment against the garnishee for costs. In this case the garnishee filed an answer denying all, indebtedness. An issue was formed to try this fact. He thus assumes the attitude of a litigant; and if unsuccessful, be is liable to a judgment for costs. Drake on Attach., sec. 662; Rev. Stats., art. 219.

It is also urged, that the court erred in finding the garnishee indebted to the alleged judgment debtor. We have examined the testimony, and we think that it supports the conclusion in this regard reached by the court.

As already indicated, however, the judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted March 22, 1892.

ON MOTION FOR REHEARING.