Opinion. — The reason which, in the opinion of the majority of the court, requires the reversal of the judgment of the District Court, and the discharge of the garnishees, is the fact, admitted in both pleadings and evidence, that at the time of the service of the garnishment and of the filing of the answers of the garnishees, the latter had in their hands nothing belonging to the judgment debtor but a chose in action, held by them for collection, which was not subject to the operation of the writ. Money which they collected upon the note after they answered was not, in our opinion, reached by the writ previously served. Whether or not this is true depends upon the proper construction of our statute regulating the process.
There is no general rule of the common law which gives to the writ of garnishment the effect of attaching debts or effects in the hands of the garnishees beyond those defined by the statute. The law is to be strictly construed, and "the extent of the garnishee's liability is measured and limited by the express provisions of statutory law." Gause v. Cone, 73 Tex. 241. Equity will not extend the operation of the writ or aid in the enforcement of its objects. Price v. Brady, 21 Tex. 620 [21 Tex. 620]; Arthur v. Batte, 42 Tex. 161.
None of the decisions of this State have ever asserted that the garnishee can be charged beyond debts owed or effects held at the time of his answer. The furthest they have gone is to hold that he is chargeable *Page 423 with debts owed or effects held at any time between the service of the writ and the filing of the answer. Gause v. Cone, supra; Tirrell v. Rice, 25 Tex. 532. And it has been affirmatively held that he can not be charged beyond that. B. B. Co. v. Moore Bros., 4 Willson, sec. 146.
The statute does not affirmatively state the time or stage in the proceedings at which the liability of the garnishee is to be fixed, but we think it does so by necessary implication. By the writ, the garnishee is required to answer what he is indebted to the defendant and was when the writ was served, and what effects of defendant's he has in his possession and had when the writ was served, and other things as to third persons which are inapplicable here. Rev. Stats., arts. 220, 221, 226.
When he answers fully the questions so put to him, and shows that at the service he owed nothing and had no effects, and that when he answers he has and owes nothing, he is entitled to his discharge under article 227, unless his answer is controverted "as hereinafter provided." Thus, in the absence of a controversy, the condition of things at the date of service and of the answer is made the basis of the judgment. How is it when the answer is controverted? This is answered by article 245, which provides that the plaintiff may controvert the answer "by an affidavit * * * stating that he has good reason to believe, and does believe, that the answer of the garnishee is incorrect, stating in what particular he believes same is incorrect." This does not authorize the introduction of anything not covered by the answer as a basis for charging the garnishee, but again restricts the issue to the matter of fact stated in the answer, and allows the plaintiff only to prevent the judgment in favor of garnishee provided in article 227, by traversing some one or more of the facts sworn to by the garnishee.
Article 251 provides that an issue shall be framed under the direction of the court, and tried as other issues; but it is evident that the further pleadings must be built upon the controversy raised by the answer and the controverting affidavit, as their foundation, since it is by the controverting affidavit alone that judgment in favor of the garnishee under article 227 is prevented.
Article 225 prohibits, generally, the garnishee, after service, from paying to the debtor any debt, and from delivering to him any effects, without fixing the period of time during which the prohibition is to last. As it is not a perpetual restraint, its continuance must depend upon the scope given by the statute to the writ, and this provision does not control the determination of that question. The duty imposed by it on the garnishee is intended to conserve the right of the creditor acquired by service of the writ, and is as comprehensive as that right, but not more so.
The articles which define the circumstances under which the garnishee may be charged by the judgment contain language which, in the absence of other controlling provisions, might be held to warrant the construction that the condition of things existing when the judgment is rendered is to determine his liability. In a sense such condition must control. Article 239 provides: "Should it be made to appear from the answer of the *Page 424 garnishee, * * * or should it be otherwise made to appear, as hereinafter provided, that the garnishee is indebted, or was so indebted when the writ was served," judgment shall be rendered against him.
The use of the present tense in the phrase, "is so indebted," has reference to the time when judgment is to be rendered. But when we look to other provisions, we see that, at the trial, it can only be made to appear by the answer, or otherwise "as hereinafter provided," that the garnishee is indebted, by an admission in his answer that he was so indebted when he answered, or, if the answer has denied such indebtedness, by proof of the fact under the affidavit controverting the truth of such statement. If either answer or proof show the indebtedness to have existed when the answer was filed, it follows that it must exist when judgment is rendered, because the garnishee, in the interval, can not relieve himself of it. So the use of the present tense in the statute is proper in either view that may be taken of the question before us; but it refers only to an indebtedness which existed at the date of the answer, and therefore still exists, and not to the one which has arisen since that date, as is made apparent by the other provisions. The same explanation may be made of article 240, prescribing the judgment where it appears that the garnishee has effects, and of article 242, applying to shares in incorporated or joint stock companies.
It may be said that, as the statute does not limit the time in which the garnishee may file his answer, except that it must be filed on or before the next default day, the construction given would enable him to file it at once, and thus relieve from the writ debts arising or effects coming into his hands between its filing and rendition of judgment. If this is true, it is an advantage or protection which the statute gives him. The statute, in making the writ reach credits or effects existing when the answer is filed, but not when the service was made, gives to it a scope greater than it originally had. Drake on Att., sec. 451a. Whether it should have been extended still further, and made to subject the garnishee to the duty and hazard of properly accounting for everything that comes into his hands after he has once answered, and before judgment, was a question for the Legislature. If the Legislature had intended to create such a duty, it would doubtless have provided for further answers and contests involving the matters subsequently arising.
Applying the rule thus deduced, we find that when the garnishees answered in this case they disclosed nothing subject to the writ. Their answers were true, and were never controverted. The subsequent pleadings of plaintiff seeking to charge them by showing that money had been collected on the chose in action, after the filing of the answer, presented an irrelevant fact. It stated matter which properly belonged to an affidavit for the issuance of a garnishment. Plaintiff could only make an issue upon which to charge the garnishees by showing the incorrectness of their answers, that is, by showing credits or effects in their hands when they answered. And it follows that she showed no ground in this case upon which to make them liable. *Page 425
To sustain the judgment against them, the court would have to extend, by a most liberal construction of the statute, the operation of this writ, and this it can not do. It is no vain thing to require that the statute be followed. It is by no other means that the garnishee can be adjudged to pay, or be protected in paying, what is in his hands.
The suggestion that, as Finnegan Co. are before the court, the rights of all parties in the money can be determined, and the garnishees protected, begs the question. Plaintiff has no right to the money, and has only the right to subject it to her claim by following the statute. Until she has done so, she presents no case for adjudication. Nor can the presence of Finnegan Co. affect the question which we have discussed. If the fund was reached by the garnishment, the court could so adjudge, though they were not parties; and, on the other hand, their becoming parties could not extend the operation of the process so as to make it fix upon the fund, if it had not already done so. It is unnecessary perhaps to say that unless the court, by the process issued, has acquired control of the fund, it has no right, by a mere judgment, to order it paid to the creditor, because it may be of the opinion that it could have been subjected by a proper proceeding.