Opinion
No. 9989.
April 28, 1937. Rehearing Denied May 26, 1937.
Appeal from Seventy-Third District Court, Bexar County; F. Stevens, Judge.
Action by the Alamo Paint Wall Paper Company against V. H. Thayer, in which plaintiff impleaded R. S. Kampmann, as garnishee. From a judgment discharging the garnishee, plaintiff appeals.
Affirmed.
Thos. G. King, of San Antonio, for appellant.
Kampmann Burney and Wm. P. Dobbins, all of San Antonio, for appellee.
Alamo Paint Wall Paper Company sued V. H. Thayer upon debt, and impleaded R. S. Kampmann, as garnishee, alleged to be in debt to Thayer. Subsequently the corporation procured judgment against Thayer for $863.78. The garnishee answered that on a date prior to service of the writ upon him he was indebted to Thayer in the sum of approximately $3,000, and Thayer was indebted to the garnishee "and others" in the sum of approximately $30,000; that the first mentioned sum (of $3,000) was set off against, and credited to Thayer upon, the second mentioned sum (of $30,000), leaving a balance owing by Thayer to the garnishee and his associates, wherefore, the garnishee was not indebted to the garnishor in any sum. The trial court rendered judgment discharging the garnishee upon his answer, and the Paint Wall Paper Company has appealed.
This is largely a fact case, tried to the court without a jury. The court found that, although the garnishee was indebted to Thayer prior to the garnishment, the amount of that debt was set off against a debt Thayer owed him, so that the garnishee was not indebted to the judgment debtor. Numerous questions of law are raised by appellant, some of them quite interesting, others presenting some difficulty of decision. But, as the case was tried by the court without a jury, and the ultimate facts undisputed and clearly established, it will be presumed that the trial judge was not led off by those questions, and his judgment must be affirmed. But, aside from every other consideration, there is nothing in the record to show that the judgment upon which appellant obtained the writ was ever made final, or had not been paid, or that garnishor owned said judgment, which showing was essential to entitle the garnishor to judgment against the garnishee.
The judgment is affirmed.