
    BUERGER v. WELLS.
    (No. 2623.)
    (Supreme Court of Texas.
    May 19, 1920.)
    1. Garnishment <@=>l— Statute must be strictly followed.
    Garnishment is merely a species of attachment, being a summary proceeding, and the statute governing it should be followed with strictness.
    2. Garnishment 88 — Affidavit in suit against two defendants must allege neither has property within state.
    Under the statute plaintiff in a suit for debt against more than one defendant, as a suit against maker and indorser of notes, cannot call a stranger into court on writ of garnishment of a fund as the maker’s, subjecting such stranger to inconvenience of proceeding and possible hazard, if either defendant has property within the state subject to execution from which the demand may be made; it being requisite that affidavit state “defendants” (not merely defendant) have no property within state.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by H. C. Wells against Fred Buerger and another, in which writ of garnishment issued against an insurance company. From an order dismissing the writ, plaintiff appealed to. the Court of Civil Appeals, which reversed and remanded (157 S. W. 2S9), and the named defendant brings error.
    Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.
    J. L. Lackey, of Burkburnett, for plaintiff in error.
    R. H. Templeton, of Wellington, and C. L. Black, of Austin, for defendant in error.
   PHILLIPS, C. J.

The suit was one by H. C. Wells against Fred Buerger as maker, and Mrs. Martha Mooney as endorser, of certain notes. A garnishment was sued out against an insurance company to reach a fund in its hands due Buerger. The affidavit for the garnishment only stated that Buerger did not have property in his possession within the State, subject to execution, sufficient to satisfy the plaintiff’s debt, omitting to negative such ownership of property by the other defendant. The honorable Court of Civil Appeals for the Seventh District held] that the motion to quash the affidavit was improperly sustained by* the trial court. We granted the writ of error because of the probable conflict between this holding and that of the Court of Civil Appeals for the Sixth District in Smith v. City National Bank, 140 S. W. 1145.

The plain effect of the statute is that a plaintiff in a suit for debt against more than one defendant, cannot call strangers into court on a writ of garnishment, subjecting them to the inconvenience of the proceeding and possible hazard, if either of the defendants has property .within the State subject to execution from which he may make his debt. Garnishment is but a species of attachment. It is a summary proceeding. The statutes governing it should be followed with strictness. The statute requires that the affidavit state that “the defendant” has not, within the affiant’s knowledge, property, etc. Where there are two defendants, or more, in the suit, this clearly means the affidavit shall state that “the defendants” have not such property. Garnishment is not intended as a remedy for one able to make his debt of the property of one of his debtors in the suit, whether such debtor be primarily liable or not. The question is ruled by Willis v. Lyman, 22 Tex. 268.

The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court affirmed. 
      <gr=>For other eases see same topic and KEY-NTJMBEB. in all Key-Numbered Digests and Indexes
     