Smith v. City Nat. Bank of Wichita Falls
Court of Appeals of Texas
Error from District Court, Wichita County ; A. H. Carrigan, 'judge. Action by the City National Bank of Wichita Falls against C. H. Smith and others, in which a writ of garnishment was issued. From a judgment for plaintiff, defendants-bring error. The City National Bank of Wichita Falls-sued and obtained a judgment in the district court against C. H. Smith, A. B. Smith, L. M. Carnes, and J. H. Burns as principals on a promissory note for $1,500, interest and attorney’s fees.
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Error from District Court, Wichita County ; A. H. Carrigan, 'judge. Action by the City National Bank of Wichita Falls against C. H. Smith and others, in which a writ of garnishment was issued. From a judgment for plaintiff, defendants-bring error. The City National Bank of Wichita Falls-sued and obtained a judgment in the district court against C. H. Smith, A. B. Smith, L. M. Carnes, and J. H. Burns as principals on a promissory note for $1,500, interest and attorney’s fees. The judgment adjudged all the defendants to be jointly and severally liable for the amount of the indebtedness, and no…
1Opinion of the CourtLevy, J.
(After stating the facts as above). The point made here is that, where there are several defendants charged with joint and several liability for a debt, as here, the affidavit, to authorize the garnishment, must aver that neither of the defendants has property within the state subject to execution sufficient to satisfy the debt, and the bond must be made payable to all of the defendants. Here, as seen, the plaintiffs merely avered in the affidavit that “the defendant C. H. Smith” did not have any property in the state subject to execution, and did not make any averment in respect to the other…
2Cases cited4 opinions
- Willis v. Lyman, Sears & Co.Texas Supreme Court · 1858
- Lewis & Baker v. StewartTexas Supreme Court · 1884
- Doty v. MooreTexas Supreme Court · 1908
- McMahon v. PerkinsSupreme Court of Rhode Island · 1900