On Motion for Rehearing.
Our attention has been called to an inaccuracy in our statement of the allegations of .appellee’s petition that is of a very material character, affecting the proper disposition of the appeal in. this case. The statement referred to is as follows:
“It was further alleged that in fact and in truth said company was not indebted to the said J. L. and R.' H. Wilkin and had no effects of those persons in its possession, and that neither owned stock in the corporation.”
The statement as quoted is incorrect. It was taken from an answer of the appellee company made in an’ answer, referred to and embodied in the petition, in another and different garnishment proceeding filed on the 5th day of March, 1923. The statement as made in our opinion was also quoted in appellee’s brief, and in the hurry of writing our opinion the writer overlooked the fact that the answer filed in such other suit (and it could not be made to speak before that time) was filed some three or four months after the date of the issuance and alleged service of the writ of garnishment in the present suit. The allegations of the verified petition of appellee relating to the subject and upon which, among others, is based the prayer for the injunction, are as follows;
“This plaintiff would show that on the 9th d'ay of October, 1922, the date on which service was attempted to be had upon this plaintiff, Lamb-McAshan,' as garnishee in said cause No. 13469-B upon said George E. Wilkin as its president and citing this plaintiff as- garnishee to appear in this honorable court on the 12th day of March, 1923; that on said date, viz. October 9, 1922, and March 12, 1923, this plaintiff, Lamb-McAshan Company, was not indebted in any manner to the said Waurika Oil Association No. 1, nor the said Y. E. Hildreth, nor the said T. A. Edmonds, nor the said J. L. Wilkin, nor the said R. H. Wilkin, either or all of them, and that this plaintiff, Lamb-McAshan Company, garnishee, was at no time indebted to any one of said judgment defendants, Wau-rika Oil Association No. 1, Y. E. Hildreth, T. A. Edmonds, J. L. Wilkins, and R. H. Wilkins at any time from the 9th day of October, 1922, to and including the 12th day of March, 1923, and that this plaintiff, Lamb-McAshan Company, was not in any manner indebted to any one of said judgment defendants on the 5th day of May, 1923, when said fraudulent judgment was dated and appears to have been rendered.
“This plaintiff would further show that as appears from the facts above alleged it was not in any maimer a debtor of any of the judgment defendants in said cause No. 13469-B, and therefore the money judgment rendered against your petitioner in said suit by default for the sum of thirty-nine thousand and nine hundred ten and 28/100 ($39,910.28) and eighty-four and 10/100 ($84.10) dollars costs of court was rendered against this plaintiff not because it was a debtor of the defendant in this suit, G. R. Ellis, and who was the plaintiff in the said suit in which said judgment was rendered, but was. rendered upon the alleged and pretended fact that your petitioner had defaulted in making an answer in said cause No. 13469^.”
*244A copy of the writ of garnishment attached to the appellee’s petition as Exhibit A was issued on the 3d day of October, 1922. The petition alleged appellee to be a domestic corporation, and the command of the writ was:
“To summon the said Lamb-McAshan Company, if to be found within your county, to be and appear before the said court at the next term thereof to be held at Wichita Ealls, in said county on the 12th day of March, 1923, then and there to answer upon oath what, if anything, it is indebted to the said Waurika Oil Association No. 1, Y. E. Hildreth, T. A. Ed-monds, J. L. Willdns and R. H. Wilkins, or either of them, it has in its possession, and had when this writ was served, and what other persons, if any, within its knowledge, are indebted to the said Waurika Oil Association No. 1, Y. E. Hildreth, T. A. Edmonds, J. L. Wilki,ns, and R. H. Wilkins, or either of them, or have effects belonging to them in their possession.
“And further to answer what number of shares, if any, the said Waurika Oil Association No. 1, Y. E. Hildreth, T. A. Edmonds, J. L. Wilkins and R. H. Wilkins, or either of them own in said Lamb-McAshan Company, and owned therein when this writ was served, and what interest, if any, said Waurika Oil Association No. 1, Y. E. Hildreth, T. A. Edmonds, J. L. Wilkins, and R. H. Wilkins, or either of them has in said Lamb-McAshan Company and had therein when this writ was served.”
From these quotations and references, it will be observed that in the petition for the injunction herein it is not distinctly alleged that at the time of the issuance and attempted service of the writ of garnishment in this case the appellee company had no effects in its possession belonging to either J. L. Wilkins or R. H. Wilkins, and that neither of .said persons owned any interest in the company, or that neither of said persons owned any shares of stock in said company, and that no persons within its knowledge were indebted to said parties. Article 275, Revised Statutes, reads:
“When it appears from the plaintiff’s affidavit that the garnishee is an incorporated or joint stock company, in which the defendant is the owner of shares, or is interested therein, the writ of garnishment shall further require the garnishee to answer upon oath what number of shares, if any, the defendant owns in such company, or owned when such writ was served, and what interest, if any, he has in such company, or had when such writ was served.”
The form of the writ of garnishment described in the next article contains the requirements of article 275. It has been held by this court and others that the answer of a garnishee, which does not include a denial of all the matters inquired about in the writ, is evasive, and that under such an evasive answer the trial court is authorized to render judgment against the garnishee for the full amount of the recovery awarded against the defendant. See Oklahoma Petroleum & Gasoline Co. v. Nolan (Tex. Civ. App.) 253 S. W. 650, and cases therein cited.
In Freeman v. Miller, 53 Tex. 372, it is said:
“The law does not seek to impose the payment of the debt due the principal debtor upon the garnishee as'a penalty for his failure to make full answer, but proceeds upon the theory that, by not having made such answ.er, he tacitly admits that he has the means in his own hands, or knows of property by which such payment could be made. R. I. Ex. Bank v. Hawkins, 6 R. I. 198.”
■ In the samé case, in speaking of the duty of a garnishee in seeking to set aside a judgment against it, the court said:
“The true rule in such cases is that to entitle a party to relief in equity he must show, first, that his failure to make full answer was not attributable to his own omission, neglect or default; second, that he has a good defense to the entire cause of action, or to such part of it as he proposes by his petition to litigate. It is not enough to show that he was not guilty of neglect in permitting the judgment to go by default, but he must also clearly show that it is inequitable and unjust to permit it to be enforced. Hair & Labuzan v. Lowe, 19 Ala. 224; Drake on Attachment, § 658e; Kerr’s Inj. in Eq., §§ 14-17.
“If the judgment below was substantially correct, although it might have been obtained through some inadvertence, mistake or want of due diligence upon the part of the defendant, or if the equities of the parties are otherwise equal, then a court of equity will not interfere, but will leave them where the law has placed them.”
Some of the expressions of the court in the case of Gilbert Book Co. v. Pye, 43 Tex. Civ. App. 183, 95 S. W. 9, cited in our original opinion, might be construed as rendering a judgment against a garnishee without service absolutely void, but that case is distinguishable in that it there appears that the court’s jurisdiction over the nonresident defendant, the Gilbert Book Company, was wholly dependent on the regularity of the garnishment proceedings, and that the original suit had been dismissed as against the other defendant, while in the case here the jurisdiction over the original defendants is unquestioned and judgment rendered against them. At all events, the rule as stated in the quotation from Freeman v. Miller, supra, has been applied in the very recent case of Galloway v. Marietta State Bank, 258 S. W. 533, by the Texarkana Court of Civil Appeals. The general rule undoubtedly is that to entitle a party to relief in equity he must show, among other things, that he has a good defense to the entire cause of action. It is not enough to show that he was not guilty of negligence in permitting the judgment to go by default, but he must also clearly show that it is inequitabe and unjust to permit it to be enforced. See Anderson *245v. Oldham & Ward, 82 Tex. 228, 18 S. W. 557, in which Ohiel Justice Stayton quotes with approval from Ereeman v. Miller, supra. See, also, Brown v. Clippenger (Tex. Sup.) 256 S. W. 254, and cases therein cited. The reason for the ruling is thus stated by Jus-tive Greenwood in Brown v. Clippenger:
“If it was the correct judgment on the merits, ■a direct proceeding to vacate it would not have had a different result. For the party recov■ering a judgment must be made a party to a proceeding for its vacation, with the right to ■enforce any subsisting obligation of the complainant on which the judgment was predicated. If the complainant was .truly bound to render to the plaintiff in the judgment all that the judgment required, his direct action must end with another adjudication against him, having pre-cisely the effect of that sought to be annulled. Oourts of equity do not set to remedy injuries •wholly technical and insubstantial.”
We adhere to what we said on other issues presented on this appeal, but conclude that, because of the failure of appellee company to make a full and complete answer to the requirements of the writ of garnishment, and thus show a valid defense to the writ that the appellants’ motion for rehearing must be granted, and the judgment and •order of the court below be reversed, vacat•ed, and set aside, and that the temporary writ of injunction issued by the court below -should also be set aside, and the writ dissolved and to be held of no further force and effect, and it is accordingly so ordered.