DocketNumber: No. 2807. [fn*]
Citation Numbers: 258 S.W. 532
Judges: LEVY, J.
Filed Date: 1/26/1924
Status: Precedential
Modified Date: 1/13/2023
Since the garnishment was served and the judgment entered within four months prior to the filing of the petition in bankruptcy by Brock, the garnishment lien created thereby became, under the terms of the federal law, null and void, on the adjudication of bankruptcy, as against the trustee. And it is plain that the bank could have urged the bankruptcy proceedings of Brock as a complete defense to the cause of action of plaintiffs in error against it, had it done so in the justice court. But, as it appears, the bank, in effect, waived any such defense in the justice court by not urging it or bringing it to the attention of the justice court. The justice court otherwise had full jurisdiction of the subject-matter, and of the person of the garnishee. The justice court was not bound to take judicial notice of the filing of the petition in bankruptcy but must have had notice through pleadings filed in the garnishment cause. Coppard v. Gardner (Tex.Civ.App.)
Where a party by fraud, accident, or mistake has been denied the privilege of availing himself of legal remedies open to him, he may seek the aid of a court of equity to relieve him of a void or voidable judgment rendered against him; but whenever he seeks the aid of a court of equity for relief against such judgment he must show either that no legal remedy was available to him for relief therefrom, or, if available, that he was prevented from availing himself of it by reason of fraud, accident, or mistake. He cannot fail to avail himself of legal remedies available and open to him and afterwards ask equitable relief.
The judgment is reversed, and judgment is here rendered in favor of the plaintiffs in error.