
    Thos. S. Wiggins v. Wm. G. Anderson
    Error, from San Augustine County.
    There are but two modes kuown to our laws for bringing a garnishee into court. The first, when an original attachment is sued out; and secondly, after a judgment has been obtained under the ordinary process, the plaintiff (when he knows of no property of the defendant to satisfy it) may, garnishee the person who is supposed to be indebted to, or have effects of the defendant in his hands.
    On the 16th of August, 1841, the defendant in error, Anderson, filed his petition in the clerk’s office of the district court of San Augustine county, against Achilles E. 0. Johnson, Joseph Deforest, -Hedge and-Curtis, to recover the value of a negro boy alleged to have been taken out of his possession by the defendants. The petition stated that Deforest, Hedge and Curtis were non-residents, and prayed that service might be made upon them by publication. Johnson was served with the ordinary process, on the 10th of September, 1844. There is no order for publication in the transcript, nor does it appear that any publication was made, or that the other defendants were brought into court by any process.
    The petition also prayed' that a writ of garnishment might be issued to the plaintiff in error, Wiggins, and that he might be compelled to answer certain interrogatories then propounded to him. These interrogatories related, not only to the indebtedness of Wiggins to the defendants, but also to other matters, which it was necessary for the plaintiff to prove, to establish his cause of action.
    Accompanying the petition, when filed in the cleric’s office, was the acknowledgment of service by Wiggins, and waiver of process, and his answer to the interrogatories. These appear to have been taken on the 22d July, 1844.
    At the first term of the court, judgment by default fin$l was entered against all the defendants, and a writ of inquiry awarded to be .executed at the next term. At the ensuing term the death of Johnson was suggested, and the case continued as to him; and the plaintiff proceeded to execute his writ of inquiry against the other defendants, and obtained a verdict and judgment against them for $700 dollars. He also took a judgment against Wiggins, the garnishee, for $525 principal, and $28.50 interest, upon the acknowledgment in his answers to the interrogatories, that he was indebted to Deforest in the sum of $460, and that he held a note on George Jones for $75, which belonged to Deforest. To this judgment the plaintiff, Wiggins, sued out his writ of error. The original petition was not sworn to by the plaintiff below, nor did he file any bond in the cause.
    
      J. Webb, for plaintiff in error,
    contended that the proceeding against Wiggins was wholly without the authority of law, and therefore void. The garnishee process is one of the modes allowed by law for getting hold of the property and effects of absent defendants when an attachment has been sued out against them, but it can never be resorted to at the commencement of a suit, except in connection with an attachment. In this case no attachment against the property of the defendants was sued out, and none could have been issued because there was no affidavit alleging such matters as were necessary to predicate it upon, and no bond was given. 3 Laws of Texas, 95.
    If the proceeding had been by attachment the judgment against the garnishee would be erroneous and void, because when he was required to answer and did answer, there was no suit pending against the original defendants. The suit was not instituted until nearly a month after Wiggins had answered.
    
      Several other errors were assigned and argued, but as they were not considered by the court they are omitted here.
    
      Ardrey and Payne, for defendant in error. No brief filed.
   Lipscomb, J.

In a suit brought by the defendant in error against A. E. 0. Johnson et ah, judgment was rendered against the plaintiff in error under the following circumstances, as collected from the record. The action was brought in the ordinary way against Johnson, Deforest, Hedge and Curtis, and proceeded to judgment against the three last named defendants; Johnson having died, his death was suggested and a sei. fa. awarded against his representatives. Judgment was at the same time rendered against the plaintiff in error as garnishee (which last judgment is now sought to be reversed). The record shows that certain interrogatories were propounded to the plaintiff in error, in relation to his indebtedness to Deforest, and as to his knowledge of the facts necessary to support the action of the defendant in error. They are not accompanied by the affidavit of the party propounding them, nor of any one else. They appear to have had the two-fold object of making the plaintiff in error both a garnishee and witness. They are headed “ William G-. Anderson v. A. E. C. Johnson et ah, trespass. The republic of Texas, county of San. Augustine district court, September term, 1844; interrogatories to be propounded to.Thomas S. Wiggins, a garnishee in this case, and tobe used in evidence in the said cause in the trial thereof. The plaintiff in error answers the interrogatories, waiving service of the citation and copy of the petition on the 22d day of July, 1844.”

The suit in which these interrogatories were intended to be used was not commenced until the 16th of August, near a month after the date of the answers of the plaintiff in error. We will not inquire into the manifold errors and irregularities said to be in the whole proceedings in the case against Johnson, Deforest, Hedge and Curtis, nor will we look into'the record with any other object than to'ascertain whether the proceedings will sustain the judgment rendered against the plaintiff in error, as garnishee in that case. There are but two modes known to our laws for bringing a garnishee into court. The first when' an original attachment is sued out. Laws of Texas, vol. 3, sec. 13-21, p. 95. And the second after a judgment has been obtained and the defendant has no property known to the plaintiff, to satisfy the same; on the oath being made required by the statute, the plaintiff can garnishee the person who is supposed to be indebted to or to have the effects of the defendant in his hands. Laws of Texas, An act to reduce into one and to amend tbe several acts concerning executions, sec. 14, passed 22d January, 1842.” It cannot for a moment be pretended that the proceedings against the plaintiff in error were had under either of the statutes referred to, nor does it appear to have been conducted in accordance with any law known to this court; nor can it be the foundation of a judgment or any other proceeding against the plaintiff in error; and it may with truth be said that irregularities are presented in this case rarely to be found in judicial proceedings and so gross and palpable in their character as to preclude the necessity of any argument to show that the judgment ought to be reversed.

Judgment reversed and plaintiff in error to recover his costs in this court and in the court below.  