
    M. Z. Smissen v. C. H. Lee.
    (No. 5941.)
    Appeal from Mitchell' County.
    R. H. Looney, counsel for appellant.
    No counsel appeared for appellee.
   Opinion by

White, P. J.

§ 449. Garnishment; application for, must be in the record; case stated. Appellee garnished appellant in justice’s court for an indebtedness to one Garrison. Appellant answered that he was not indebted to Garrison. His answer was controverted, and judgment was rendered against him, and he appealed to the county court. In the latter court, the cause .being called for trial, it was discovered that the original papers had been lost. There was no substitution, or attempt at substitution, of the lost papers, and, over objection of appellee, the court tried the cause and rendered judgment against him for $120 and costs. Held error. The application in writing under oath for the writ of garnishment required by article 185, Revised Statutes, is the basis of the proceeding — the pleading upon which the whole case against appellee depended. It was indispensable to a proper understanding and trial of the cause, and it was error to proceed to a trial of the cause without either the original or a properly substituted copy of it. The judgment is reversed, and upon the facts of the case is rendered in favor of appellee.

April 10, 1889.

Reversed and rendered.  