Iglehart v. Mills

21 Tex. 545

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Hemphill, Ch. J.

This judgment shows the necessity of citation to Mills in the garnishment proceeding by Moore .against the plaintiff in error.

The right of ownership in the Dalton or Mrs. Washington note not being adjusted in that case, the garnishee, though judgment had gone against him in favor of the plaintiff in execution, was left open to suit by the holder of the note, and though the judgment and proceedings in the former cause were set up as a defence, yet they availed nothing and a second judgment was given on the same note against the defendant.

He prayed in his answer in this cause that Mills and Moore might be compelled to interplead to ascertain who was entitled to the money, and in Wybrants v. Nichols, (3 Tex. R. 467,) (a case altogether parallel,) it was held that this would have been the proper course as one essential to the rights of both the holder of the note and of the defendant, and that, until the right of the plaintiff in execution and the holder of ,the note had been adjudicated, the judgment against the garnishee should have been enjoined.

There will he no necessity for such injunction as the judgment on the garnishment cause has been reversed, and though the defendant might have been saved some costs had the claimants interpleaded, yet that is not sufficient ground for the reversal of this judgment.

It appears from the pleadings of defendant that Mills was the owner of the note anterior to the service' of garnishment, and as such his right to the judgment cannot be gainsaid.

Judgment affirmed.