The conclusions of this court upon the law are, that there is no reversible error in the proceedings of the lower court, prior to the refusal of that court to discharge the garnishees upon their answers, and that there was error in refusing to sustain the motions of the garnishees praying for their discharge, and for such error the judgment must be reversed; and this court, proceeding to render the judgment which should have been rendered by the trial court, doth adjudge and order that the garnishees, the Planters and Mechanics Bank and James A. Patton, be discharged upon their respective answers, and that the plaintiff, Elizabeth P. Floeck, take nothing by her garnishment, and that both the garnishees and the defendants John Finnegan and Robert E. Paine recover their costs against plaintiff.
In the conclusion of the court upon the facts I fully concur, but I respectfully dissent from the judgment dismissing the garnishees, and denying the plaintiff the recovery of the moneys in their hands collected on the debt due from Gibbons to Alexander, the judgment debtor of the plaintiff. It will not be denied but that the money in the hands of the bank might have been reached by another garnishment sued out by the plaintiff. It is conceded by the findings of this court that the money was Alexander's, the defendant in the original judgment, and was not Finnegan Co.'s. All parties were before the court, and why require another writ of garnishment? The law does not require a vain thing.
As I construe the statute under which the garnishment proceedings in this case were had, I think the plaintiff was by both the letter and the spirit of the statute entitled to a judgment requiring the garnishee the Planters and Mechanics Bank to pay over the moneys collected upon *Page 426 the Gibbons notes to her. Article 245, Revised Statutes, provides, that if the plaintiff be not satisfied with the answer of the garnishee he may controvert the same, by an affidavit in writing, signed by him, that he has good reason to believe, and does believe, that the answer is incorrect, stating in what particular he believes the answer incorrect. We submit that the sworn supplemental petition was a substantial compliance with this provision of the statute.
The garnishees had answered that they had no effects in their possession belonging to the defendant Alexander. They admitted that he had placed with them for collection certain promissory notes, but that afterwards he transferred said notes to Finnegan Co. for a valuable consideration, as they were informed and believed; and that upon notice of said assignment, and the presentation to them by Finnegan Co. of an order from Alexander to them to pay all moneys collected upon the notes placed with them for collection to Finnegan Co. they, the garnishees, had agreed and contracted with Finnegan Co. to collect and pay over the moneys so collected to them, the said Finnegan Co. The supplemental petition avers and charges that the assignment of said notes, and the order from Alexander to garnishees to pay the moneys collected on them to Finnegan Co. were both fraudulent, and made with the intent to defraud plaintiff and other creditors of said Alexander, and that said Finnegan Co. were parties to said fraud; and in addition, plaintiff averred that, since the filing of the said garnishees' answers, the garnishee Patton had collected a large sum of money upon said notes, and that the same was still in the possession of the garnishees.
Article 239, Revised Statutes, provides, that if it appear from the answer of the garnishee, or should it be otherwise made to appear, as hereinafter provided, that the garnishee is indebted, or was so indebted at the time of service of the garnishment, the court shall render judgment for the plaintiff against the garnishee for the sum admitted or proved to be due from him to the defendant in the original judgment, or for so much thereof as shall be sufficient to satisfy the plaintiff's claim. The fact that the money, as charged in the supplemental petition, was collected by the garnishee Patton in October, 1892, and by him paid to the bank, the other garnishee, and that it was kept in the bank, and was never paid out to Finnegan Co., or to any one else, and that it was in the possession of the bank at the time of the trial and judgment, are all facts established by the evidence beyond controversy and are not denied or questioned by this court, and that the transfer to Finnegan Co. by Alexander was fraudulent is a conclusion which this court by its findings of fact says is warranted by the evidence.
We think there was a substantial compliance with the statute in the garnishment proceedings, and that the judgment of the lower court should be affirmed, in so far as it gave judgment against the plaintiff for the money in the hands of the garnishee and for costs against both the garnishee the Planters and Mechanics Bank and the defendants Finnegan Co. It is true that the notes in the hands of the garnishees, when *Page 427 the writ was served upon them, were not subject to garnishment, choses in action, under a long line of decisions, not being assets, as that term is used in statutes regulating garnishments, and that it is for this reason, as I understand them, that my associates hold that the plaintiff should not recover.
Proceedings in garnishment by a judgment debtor, I submit, should not be controlled by the same statutes as are proceedings in attachment or garnishment before the plaintiff has obtained judgment for his debt. In the latter case, the court, upon the affidavit of the plaintiff that the statutory grounds for the writ exists, and when the allegation that the defendant is indebted to plaintiff has not yet been judicially determined, takes from the possession of the defendant his property. But in garnishment, after judgment, the writ issues to aid the plaintiff in the collection of his judgment, only after the common law writs of execution have failed to accomplish their purpose against an insolvent and perhaps fraudulent debtor. Such proceedings are remedial, and should be liberally and not strictly construed.
I confess my inability to distinguish between the principle upon which judgment was rendered for the plaintiff in the case of Thompson v. Gainesville National Bank, 66 Tex. 156, and that involved in this case. If one who is indebted upon a negotiable note to the plaintiff's judgment debtor at the time he is served with garnishment, and who answers that he is not indebted, the note not being then due, but who, after the note matures, and before judgment is rendered in the garnishment, pays it to the payee, the judgment debtor, is held liable for the amount so paid, to the plaintiff, why may not a trustee of the judgment debtor, who when garnished has in his hands for collection notes belonging to the debtor, and who so answers, and afterwards collects the money due upon the notes, and has it in his hands when judgment is rendered in the garnishment, be required to pay the same to the plaintiff?
Reversed.
Writ of error refused.