Mensing v. Axer & Engelke

2 Posey 268

• Court: Texas Commission of Appeals
• Decided: July 1, 1880
• Docket: No. 804
• Status: Published

Opinion

Opiotoií.—While the proceeding by garnishment is the creature of statute, and therefore a legal remedy, nevertheless it is in the nature of a bill of discovery. The remedy is not based upon any supposed default of the garnishee in complying with any contract existing between him and the plaintiff, but the object of the proceeding is to ascertain whether or not he is indebted to or has in his possession effects of the debtor of the plaintiff so that the same may be made subject to the debt. As was said by Chief Justice Eustis in Dickson v. Morgan, 7 La. Ann., 491: “The power of answering interrogatories on oath we do not think can be conferred by one person upon, another. True, the statute provides that affidavits may be made by agents or attorneys, but that does not authorize the party to whom, interrogatories are propounded to answer them by agent or attorney.”

By the terms of the Revised Statutes, article 2295, property held as a pledge, or by virtue of a mortgage, is liable to levy and sale, subject to the pledge or mortgage, and the purchaser at such sale is entitled to possession of the property upon complying with the terms of the pledge or mortgage.

In our opinion the court erred in overruling the special exceptions to the amended answer.

Reversed and remanded.