B. G. Selman v. Orr & Lindsey, 75 Tex. 528

COLLARD, Judge. All the proceedings for garnishment in this case were in the name of Orr & Lindsley v. R. W. Watson, except the judgment, which was for Orr & Lindsey. We do not think Lindsley and Lindsey are idem sonans, consequently the judgment can not stand. Roberts v. The State, 2 Texas Ct. App., 4; Whart. Crim. Ev., 9 ed., sec. 96; Shields v. Hunt, 45 Texas, 425; McRee v. Brown, 45 Texas, 503; Faver v. Robinson, 46 Texas, 204.

Watson living in a different county from the one in which the writ of garnishment issued, a commission issued to the clerk of the District Court of the county of his residence in the usual form, and was returned by the clerk as follows: “ Orr é Lindsley v. B. P. Hatcher. No. lfihf Suit in District Court of Tarrant County.—In obedience to the attached order, I caused R. W.

Watson to appear before me July 26, 1887, at my office in Weston, in obedience to the order to take his depositions as garnishee in the above entitled cause, and who, after being by me duly sworn, deposes and says that there is a settlement to be made between himself and B. P. Hatcher before he can tell whether he is indebted to B. P. Hatcher or not, and if indebted to him, how much. There is an outstanding indebtedness due the said firm of R. AV. Watson, in which the said B. P.

Hatcher is interested, and it will be utterly out of the question to make a correct settlement with said Hatcher until those outstanding claims are disposed of in some way satisfactory to the parties to whom they are owing. “R. AV. Watson. “The foregoing statement of R. W. Watson was by me reduced to writing, at the time and place aforesaid, and was then and there sworn to and subscribed by said R. AV. Watson. “To certify which I hereunto set my hand and affix my seal of office in the town of Weston, Collin County, Texas, this 26th day of July, 1887. [seal] “A. T. Robertson, J. P., “Ex officio Notary Public, C.

C., Texas.” Plaintiffs Orr & Lindsley excepted to the answer, and the court on motion gave judgment by default against the garnishee for the full amount ■of the judgment previously rendered in the original suit, $786.35, interest, and costs. All the errors assigned by plaintiff in error were before the court in the case of Freeman v. Miller, 51 Texas, 444, a case similar to this one in all respects.

The answer made by the garnishee was but a general denial of indebtedness, and, as in this case, there was no pretense of answering all the questions; the return and certificate of the officer executing the commission were substantially as in this case; there was no citation to the garnishee and sheriff’s return showing service returned with the commission, and there was no certificate of the officer showing failure or refusal of the garnishee to answer; it was held that judgment by default was properly rendered.

The court did not discuss all the assignments of error, but it was held that in a case where third persons were not interested the appearance of the garnishee might be voluntary, .and if he did so appear without process and answer it was sufficient. The law then as now required the officer executing the commission to certify to the fact if the garnishee failed or refused to appear and answer. Pasch. Dig., art. 167; Rev. Stats., arts. 203, 204. The court did not discuss the point arising from the want of such certificate. It did not demand discussion.

The answer made evidenced the failure to answer all the questions, and no certificate was needed, except to show what answer was made. We think all the questions raised as to the court’s authority in this case to enter the judgment by default were decided adversely to plaintiff in ■error in the case above referred to; but because of the discrepancy in the affidavit and proceedings for the writ and the judgment before noticed, the judgment must be reversed and the cause remanded. Reversed and remanded. Adopted December 20, 1889.