Childs v. Gearhart
Childs v. Gearhart
Opinion of the Court
This suit originated through an action in garnishment instituted by ap-pellee against βthe Army Bank of Ft. Sam Houston, a copartnership doing business in Bexar county, Texas,β in which garnishment proceeding it was alleged that appellee, in a suit wherein E. Eh Zachry was defendant, had obtained a judgment against Zachry in the sum of $2,054.81; that the judgment was still in force and unpaid; that the defendant had no property subject to execution, and that appellee had reason to believe, and did believe that the bank was indebted to Zachry or had in its possession funds belonging to him. A writ of garnishment was issued and served on the bank, and it answered that at the time the writ was served its books showed a credit of $864 in favor of E. B. Zachry, but that since the service aforesaid A. F. Childs, of California, had set up a claim to the money, and that it had in its possession a note for $1,000 executed by R. P. Lucas in favor of Zachry. It prayed that Childs be made a party. Motions to quash the writ of garnishment made by Zachry and Childs were overruled and *703 Childs set up a claim to tlie funds in controversy. During the pendency of the suit Gearhart died, and W. S. Ingram, administrator of his estate, was made a party to the suit, and upon a trial, without a jury, judgment was rendered in favor of the administrator as against the garnishee for $864, and that Childs take nothing by his suit
The Court of Civil Appeals of the Eighth District has held that a dormant judgment will support a writ of garnishment. Tripp-lett v. Hendricks, 212 S. W. 754. In that case, as well as the opposing case of Friedman v. Early Grocery Co., 22 Tex. Civ. App. 285, 54 S. W. 278, the judgment was dormant when the writ of garnishment was issued. In this case it was not dormant, but became so after the court had obtained control over the funds in the hands of the garnishee. The difference is material. This disposes of the seventh assignment of error.
The judgment is affirmed.
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Case-law data current through December 31, 2025. Source: CourtListener bulk data.