On Motion for Rehearing.
It was held in the original opinion that in the absence of a showing that the alleged judgment upon which the garnishor based its application for writ of garnishment was ever rendered, and had never been set aside, reversed, or satisfied, a judgment denying recovery to the garnishor should be affirmed.
In its motion for rehearing plaintiff in error invokes the familiar rule that in case of garnishment proceedings based upon a judgment rendered in the same court, the court will take notice of such judgment without requiring its introduction in evidence. That rule would apply here if judgment had been for the garnishor; that is, the presumption of prior judgment would be indulged in support of the judgment in garnishment. But here recovery was denied the garnishor, and the presumption is not available to him. It might be that recovery was denied plaintiff in error upon the very fact (in addition to the reasons given by the court) that plaintiff in error had no judgment in that court to support garnishment.
We did not intend to hold in the original opinion, as plaintiff in error contends we did in fact hold, that plaintiff in error could not here complain of the findings of the trial court without having first excepted thereto below. We simply held, incidentally, that such complaints in this court must be by specific assignment of error. Upon consideration we conclude that plaintiff in error in fact efficiently assigned error upon the finding discussed in the original opinion. Nevertheless, we adhere to the holding that that'finding is supported by the record, and we- will not disturb it.
Plaintiff in. error’s motion for rehearing will be overruled.