      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00496-CV



                                   Bank One, NA, Appellant

                                                 v.

                          GWJ Sourcenet Distribution, Inc., Appellee




         FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
        NO. 04-1326-CC2, HONORABLE TIMOTHY L. WRIGHT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this restricted appeal, Bank One challenges the default judgment rendered in favor

of GWJ Sourcenet Distribution, Inc. (GWJ Sourcenet). Bank One contends that the county court at

law erred in entering the default judgment because the writ of garnishment was defective and

because the return of service of the writ of garnishment was defective. Bank One also insists that

there is no evidence to support the county court at law’s award of attorney’s fees to GWJ Sourcenet.

Because we hold that the writ of garnishment was defective, we reverse the default judgment and

remand for further proceedings.


                                        BACKGROUND

               On October 5, 2004, GWJ Sourcenet obtained a default judgment in the county court

at law for $96,729 plus interest and attorney’s fees against J&B Computer Maintenance, Inc. GWJ
Sourcenet then filed an application for a writ of garnishment in an attempt to garnish J&B

Computer’s account at Bank One. The writ of garnishment issued on November 29 and was served

on Bank One’s registered agent on November 30; Bank One did not file a written answer as required

by the writ. On January 20, 2005, the county court at law entered a default judgment against Bank

One for the full amount of the judgment against J&B Computer, plus attorney’s fees.1 This restricted

appeal followed.


                                      STANDARD OF REVIEW

                To prevail in a restricted appeal, a party must establish that (1) it filed notice of the

restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying

suit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not

timely file any post-judgment motions or requests for findings of fact and conclusions of law, and

(4) error is apparent on the face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845,

848 (Tex. 2004). The face of the record, for purposes of a restricted appeal, consists of all the papers

on file in the appeal, including the statement of facts. Norman Communications v. Texas Eastman

Co., 955 S.W.2d 269, 270 (Tex. 1997). In this case, the parties dispute only whether error is

apparent on the face of the record.




        1
           “If the garnishee fails to file an answer to the writ of garnishment at or before the time
directed in the writ, it shall be lawful for the court . . . to render judgment by default . . . against such
garnishee for the full amount of such judgment against the defendant together with all interest and
costs that may have accrued in the main case and also in the garnishment proceedings.” Tex. R. Civ.
P. 667.

                                                     2
                                            DISCUSSION

                Bank One contends that the writ of garnishment is defective because it was issued by

the incorrect court.2 We agree.

                Garnishment is a statutory proceeding whereby the property, money, or credits of a

debtor in the possession of another are applied to the payment of a debt. See Tex. Civ. Prac. & Rem.

Code Ann. § 63.001 (West 1997); Tex. R. Civ. P. 657-79; Beggs v. Fite, 106 S.W.2d 1039, 1042

(Tex. 1937); Jamison v. National Loan Investors, L.P., 4 S.W.3d 465, 468 (Tex. App.—Houston [1st

Dist.] 1999, pet. denied). Thus, garnishment necessarily involves three parties: a creditor, a debtor,

and a third person who has some obligation to the debtor. Orange County v. Ware, 819 S.W.2d 472,

474 (Tex. 1991). Garnishment is a creditor’s action against his debtor’s debtor, the garnishee, to

obtain satisfaction of what is owed the creditor. Id. Funds placed with a bank ordinarily become

general deposits that create a debtor-creditor relationship between the bank and its depositor. Bank

One, N.A. v. Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 (Tex. 1992).

                A writ of garnishment is available to a judgment creditor where the creditor has a

“valid, subsisting judgment and makes an affidavit stating that, within the plaintiff's knowledge, the

defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.”

Tex. Civ. Prac. & Rem. Code Ann. § 63.001(3). Although a garnishment action is separate from the

original action, it is ancillary to the original proceeding and takes its jurisdiction from the underlying

suit. See Varner v. Koons, 888 S.W.2d 511, 513 (Tex. App.—El Paso 1994, orig. proceeding); see


        2
          Bank One also maintains that the writ of garnishment was defective because it did not state
the (1) name and location of the issuing court, (2) filing date of the writ, and (3) name and address
of plaintiff’s counsel. Because we hold that the writ of garnishment was issued by an incorrect court,
we do not address these alleged errors.

                                                    3
also Baca v. Hoover, Bax & Shearer, 823 S.W.2d 734, 738 (Tex. App.—Houston [14th Dist.] 1992,

writ denied). The court in which the original suit was brought has the authority to issue the writ.

King & King v. Porter, 252 S.W. 1022, 1022 (Tex. 1923). In addition, the writ of garnishment must

have the seal of the issuing court impressed on it. Tex. R. Civ. P. 15 (all writs shall be dated and

attested by clerk with seal of court impressed thereon), 662 (writ of garnishment shall be dated and

tested as other writs). It has long been recognized in this state that the remedy of garnishment is

summary and harsh and should not be sustained unless there is strict compliance with the statutory

requirements and the related rules. See, e.g., Beggs, 106 S.W.2d at 1042; Mendoza v. Luke Fruia

Inv. Inc., 962 S.W.2d 650, 651 (Tex. App.—Corpus Christi 1998, no pet.); Walnut Equip. Leasing

Co. v. J-V Dirt & Loam, 907 S.W.2d 912, 915 (Tex. App.—Austin 1995, writ denied).

               Here, GWJ Sourcenet filed an application for a writ of garnishment in County Court

at Law No. 2 of Williamson County, the same court that issued the default judgment in the original

suit against J&B Computer. However, the writ of garnishment was issued by County Court at Law

No. 3 and was impressed with that court’s seal. County Court at Law No. 3 was not authorized to

issue the writ. King & King, 252 S.W. at 1022. Therefore, there is error on the face of the record.

Accordingly, we hold that the writ of garnishment was defective and that it cannot serve as the basis

for a default judgment.3




       3
          Because we hold that the writ of garnishment was defective, we do not address the alleged
defects in the return of service of the writ.

                                                 4
                                       CONCLUSION

              Because we hold that the writ of garnishment was defective, we reverse the default

judgment and remand for further proceedings.




                                            Bea Ann Smith, Justice

Before Justices B. A. Smith, Patterson and Puryear

Reversed and Remanded

Filed: July 21, 2006




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