Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 287
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1875.] JORDAN v. CORLEY. 287
Statement of the case.
The allegations of the petition that the evidence before the
justice of the peace did not authorize the judgment, is clearly
insufficient. The remedy was by certiorari, and not by injunction.
(Rotzein v. Cox, and others, 22 Texas, 62.)
The appellant contends that the execution, as stayed by the
injunction, was the only one in the record, and that it was
issued more than twelve months after the rendition of the
judgment. It is not averred in the petition that this execution
was the only one which had issued on the judgment, it is
simply alleged that the execution in question was issued on
the 12th February, 1872, without showing that it had not been
preceded by the issuance of other executions. In other respects,
the allegations of the petition are vague and uncertain,
leaving it to be inferred that the execution had been levied
upon the plaintiff's land, when it should have been directly
averred if such was the fact.
It is further objected, that no effort was made to satisfy the
judgment against Burk Jones, the defendant in the judgment
rendered by the justice of the peace. There are two modes
of garnishment; the first is where an attachment is sued out,
and the other where the plaintiff proceeds under the executionlaw
after a judgment has been obtained. The pleader seems
to have regarded the latter, in the frame of the petition, rather
than the former, as evidently appears from the assignment
of errors and the statement in his petition that the officer failed
to return that no property of the defendant could be found,
and the further allegation that the garnishee, the plaintiff in
this suit, did not state on the trial before the justice of the
peace that he had any funds or effects of the defendant in his
The writ of garnishment in this case was not issued under
the execution-law, but under the statute regulating attachments
and garnishments, as auxiliary to the process of attachment.
The statute authorizes the court, after judgment against
the defendant in attachment, to enter up a judgment against
the garnishee for all effects of the defendant acknowledged to
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/295/: accessed October 20, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .