M. P. Renfro sued Thomas Welch in a Justice Court to recover the value of two horses which had been hired by Renfro to Welch and which Welch had driven to death. Ancillary to this suit Renfro sued out a writ of garnishment against Gaines Purvis, deputy sheriff, who was alleged to have in his possession $150, the property of Welch, or to be indebted to him in that amount. Welch had been arrested by Purvis at night upon a charge of malicious mischief in driving the horses to death, and to save himself from going to jail had deposited with Purvis $150 in cash as security for his appearance the next morning, for which Purvis, as deputy sheriff, had given him a receipt in the name of Spradley, the sheriff. Early the next morning Welch employed the law firm of Garrison Blount to defend him in the criminal case, agreeing to pay them a fee of $75 and also procured them to make his appearance bond. In payment of the fee and to indemnify them against liability on the appearance bond Welch gave Garrison Blount an order on Spradley for the $150. The appearance bond was presented to the sheriff and approved by him and Welch released. Upon presentation of the order for the money Spradley said it was all right and that he would pay it over as soon as Purvis came in. Before the money was turned over, however, writ of garnishment was served upon Purvis, whereupon the sheriff declined to pay over the money to Garrison Blount, who replevied the money under the statute. All of the parties answered the garnishment suit, setting up the facts which are substantially as above stated, and moved to dismiss the garnishment writ upon the ground that the suit against Welch was for unliquidated damages for a tort, and also that the money had been transferred and assigned to Garrison Blount, and Spradley had been notified of such transfer before the service of the writ of garnishment.
The motion was refused, and judgment was rendered against Garrison Blount and the sureties on the replevy bond for the amount claimed in the garnishment. Upon appeal to the County Court the same result was reached, and from this judgment the defendants in the garnishment proceedings appeal to this court.
Clearly Renfro's suit against Welch was an action for unliquidated damages for the tort committed by Welch in driving his horses to death. The plaintiff could not make it a debt, within the meaning of the statute authorizing garnishment proceedings, by simply calling it a debt. The writ of garnishment was not authorized and should have been quashed. (Hockstadler v. Sam, 73 Tex. 315; El Paso National Bank v. Fuchs, 89 Tex. 197.)
The money had been placed in the hands of Purvis, deputy sheriff, as the agent of Spradley, the sheriff, as shown by the receipt, and the assignment to Garrison Blount and notice thereof to Spradley before the service of the writ of garnishment on Purvis was a bar to the garnishment proceedings against Purvis. At the time of the service of the writ the money was the property of Garrison Blount, who were entitled to $75 of it absolutely, and to the balance as an indemnity against loss on the appearance bond. *Page 462
For the errors indicated the judgment of the County Court is reversed and judgment here rendered for appellants.
Reversed and rendered.