Cohn v. Tillman

Citations

• 66 Tex. 98
• 18 S.W. 111
• 1886 Tex. LEXIS 453

Syllabus

<p>1. Practice—Garnishment—The proceedings being otherwise regular, a failure to docket garnishment proceedings against each of the garnishees, is not such an irregularity as would affect the validity of a judgment against them.</p> <p>2. Same—Apnlication being made for a writ of garnishment, process thereunder was sent to another county, where the applicant stated one of the garnishees lived, and was duly served by the sheriff. Without other legal communication being made to the non-resident, judgment by default was rendered against him, the judgment reciting that he was then a resident of the county wherein it was rendered. Held:</p> <p>(1) When no answer was made to f'ie process by the non-resident garnishee, it was the plaintiff's duty to sue out a commission, as provided in B. S., a.t. 195.</p> <p>(2) The process served on him merely notifying him that a commission would subsequently issue, it was not his duty to answer the writ in order to prevent judgment by default against him.</p> <p>(3) If, prior to the rendition of the judgment, the non-resident changed his domicile to the county wherein the proceeding was pending, the court should have been notified of that fact, and process sued out notifying him that his answer to the writ would be demanded.</p> <p>(4) But if it was incumbent upon the non-resident garnishee to take notice that, since his change of domicile, his duty was to answer the writ, it should appear in the record that he changed his domicile within such a period before the rendition of the judgment as afforded him a reasonable time for making his defense.</p> <p>(5) A recital in the judgment that he was “of Dallas county” on the date of its rendition, was not sufficient showing as to when the change occurred.</p>