Leon & H. Blum et al. v. W. J. Moore, Garnishee, et al., 91 Tex. 273

GAINES, Chief Justice. The plaintiffs in error, Leon & H. Blum, brought suit in the District Court of Galveston County for the recovery of a debt and sued out a writ of garnishment against defendant in error Moore, who lived in Burleson County. The garnishee did not answer the writ; whereupon the plaintiffs sued out a commission under the statute to compel him to answer. Rev. Stats., arts. 228-9.

The officer to whom the commission was directed issued a citation to the garnishee, and in obedience to the writ he appeared and answered, in substance, that he owed the defendants in the original suit the sum of §224, and that he had certain effects of the defendants in his hands which he was administering as trustee under a deed of trust executed by them to him in order to secure certain of their creditors, and that such effects were not, in his opinion, of sufficient value to pay the debts thereby secured.

The answer set forth the property, both real and personal, which had been mortgaged by the trust deed, together with the names of the preferred creditors and the amounts of their respective debts. The garnishee also answered that he had been garnished by other creditors of Grant Brothers, the defendants, and that he did not recollect which writ had been served first, and prayed that such other garnishing creditors, who were named, as well as all other creditors, be made parties. This answer was filed May 21, 1894. It was excepted to but the exceptions were overruled.

On the 6th day of December, 1894, the garnishee by leave of the court filed an amended answer, in which he repeated his allegations as to the deed of trust, and averred that it was a valid instrument as to the property embraced in, and the creditors secured by it. In this answer he also alleged that much of the property had been disposed of and the proceeds deposited to await the result of the suit, under written agreements made by the parties at interest, which agreements were made parts of the answer.

In the amended answer, the garnishee did not aver as in the original, that the property was not more than sufficient to pay the preferred creditors. He again prayed as before, that new parties be made, and further, that he be adjudged to pay only the admitted indebtedness, $224, and, in addition, the surplus that might remain in hands after the payment of the secured creditors, in the execution of the trust. To the answers the plaintiffs filed what they styled a supplemental petition, in which they undertook to controvert the answer, and in which they alleged that the deed of trust was fraudulent and void.

This pleading was not under oath. . Other garnishing creditors made themselves parties and adopted the pleading of the plaintiff, but neither were their answers verified by affidavit. Other parties were made, but we do not find it necessary to refer to their pleadings. Assuming that the pleadings made an issue as to the validity of the deed in trust, the court upon the trial heard evidence upon the question, and held the instrument void and gave judgment for the garnishing creditors against the garnishee.

On appeal from the judgment, the Court of Civil Appeals held the deed in trust valid and reversed the judgment of the trial court and rendered judgment accordingly. The proceeding for the collection of a debt by a garnishment is purely statutory; and in order for a party to avail himself of the remedy the requirements of the statute must be strictly pursued. Givens v. Taylor, 6 Texas, 315. The statute might have made the answer of the garnishee conclusive; but it docs not do this. It provides a method and but one method, by which the answer may be controverted and its statements put in issue.

The provision is: “If the plaintiff should not be satisfied with the answer of any garnishee, he may controvert the same by an affidavit in writing, signed by him, stating that he has good reason to believe, and does believe, that the answer of the garnishee is incorrect, stating in what particular he believes the same is incorrect.” Rev. Stats., art. 245. The affidavit is essential in order to make an issue; and hence an attempted traverse of the garnishee’s answer, which is not sworn to, is a proceeding not authorized by the statute,-—is necessarily a nullity and and should be so treated by the court.

It follows, that the trial court should have taken the answer of the garnishee as true, and should merely have charged him with such liability as was disclosed by its admissions. The Court of Civil Appeals so ruled; but held further that it was proper to consider the orignal answer, and that, since the deed in trust was referred to therein, it was also proper to consider it and to say whether or not it was void upon its face. They, however, as we have said, held the instrument valid.

When we granted the writ we were inclined to think that this ruling was erroneous, but a careful inspection of the record satisfies us that the question is not presented. It is -not necessary to determine whether or not it was proper to look to the first answer. It is generally held that the garnishee has the right by leave of court to amend his answer; and if so, it would seem that where the amended answer is evidenily a substitution of the original, the latter ought to go out of the case, save perhaps as evidence in the event the amended answer be controverted.

But however that may be, the original answer was not accompanied by the deed in trust or a copy thereof as an exhibit, nor did it contain any recitals of its contents, from which it was possible to determine the powers which were attempted to be conferred upon the trustee.

It alleged that the mortgage was recorded in Burleson County and in speaking of the ¡property uses the language “all of which said property is fully described in said deed of trust which is here referred to.” This did not authorize the court to go out of the record to ascertain the contents of the instrument, or in the absence of an affidavit controverting the validity of the mortgage to permit evidence to be adduced of its contents. To make an exhibit to a pleading the instrument or a copy thereof must be attached to it or filed with it.

In other words, it must be made to appear as a part of the pleading; it must be exhibited. No issue having been made as authorized by the statute as to the validity of the instrument, the court should have treated it as valid. Therefore, although we are not prepared to concur in the grounds on which the Court of Civil Appeals based their conclusion, we are of opinion that they reached the correct result.

It may be, that the Court of Civil Appeals should have rendered judgment so as to enable the garnishing creditors to reach any surplus of the trust property or fund that might remain after the payment of the preferred creditors; but their failure to do this is not assigned as error in this court. That court correctly held that because the appellees (the plaintiffs'in error here) did not assign the allowance of an attorney’s fee of §500 to the garnishee as error, they could not there complain of that ruling.

The judgment in that particular was against them, and if they wished to reverse the action of the court in allowing the fee they should have complained in a cross-assignment of error. We deem it unnecessary to discuss the assignments of error in detail. In our opinion the action of the Court of Civil Appeals in reversing the judgment of the District Court and in rendering judgment for the garnishee was correct, and their judgment is therefore affirmed. Affirmed.