Cordes v. Kauffman

29 Tex. 179

• Court: Texas Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Smith, J.

The sickness of Mrs. Cordes, on the day of trial before the justice of the peace, as garnishee, was sufficient excuse for not appearing; but we are of opinion the grounds of defense set up in the petition for certiorari are not sufficient to entitle them to the writ of certiorari. They aver that they were not indebted to the defendant in the suit. This would not have entitled them to a discharge, if they had appeared before the justice of the peace and thus testified. It is made the duty of the garnishee to testify as to what he may be indebted to the defendant, or what effects of the defendant he may have in his possession, or had at the time of the service of the garnishment, and what credits and effects there are of the defendant in the hands of any other .person, and what person, to the best of his knowledge and belief. (O. & W. Dig., Art. 39.) And if he fail to appear and answer, as directed above, before judgment against the defendant, after calling him, the justice of the peace will render judgment against him for such sums as may be rendered against the defendant. (O. & W. Dig., Art. 40.)

From the repeated rulings of this court, we are of opinion that the petition for certiorari was not sufficient, and that the court did not err in quashing and dismissing the cause. (11 Tex., 259; 6 Tex., 311; 7 Tex., 250; 15 Tex., 316.)

And the judgment is

Aeeirmed.