Wynne v. State Nat. Bank

• Decision Date: 27 November 1891
• Citation: 17 S.W. 918
• Parties: WYNNE v. STATE NAT. BANK OF FT. WORTH <I>et al.</I>
• Court: Texas Supreme Court

17 S.W. 918

WYNNE v. STATE NAT. BANK OF FT. WORTH et al.

Supreme Court of Texas.

November 27, 1891.

Appeal from district court, Tarrant county; R. J. BOYKIN, Special Judge.

Garnishment by the State National Bank of Ft. Worth, Tex., against W. F. Sommerville, trustee. R. M. Wynne intervened, and filed a petition, a demurrer to which was sustained. Wynne appeals. Reversed.

Ball, Wynne & McCart and N. A. Stedman, for appellant. Hunter, Stewart & Dunklin, for appellee.

HENRY, J.

J. W. Zook executed a deed of trust upon certain tracts of land to secure a debt due by him to the Dundee Mortgage & Trust Investment Company, Limited, in which W. F. Sommerville was appointed trustee with power to sell for the payment of the debt, and afterwards he (J. W. Zook) conveyed to H. J. Zook five tracts of the land covered by the deed of trust. On the 20th day of November, 1886, one Abe Rothschild caused to be issued out of the district court of Galveston county, in a suit in which he was plaintiff and J. W. & H. J. Zook were defendants, a writ of attachment, which was on the 22d day of November, 1886, duly levied upon all of the land included in the said deed of trust. On the 8th day of April, 1887, a judgment was rendered in said suit in favor of Rothschild, and against said J. W. & H. J. Zook, for the sum of $2,352.15, and foreclosing the lien upon all of the property attached. On the 13th day of June, 1887, Rothschild, for a valuable consideration, transferred said judgment to R. M. Wynne. Sommerville sold under the deed of trust, and, having received the purchase money, conveyed the lands to the purchaser, and, after having paid its debt to the Dundee Mortgage & Trust Company, Limited, and all charges, he held, on the 26th day of November, 1888, of the proceeds of the sale, the sum of $2,953.93. On the lastnamed date the State National Bank of Ft. Worth caused Sommerville to be served with a writ of garnishment sued out by the bank upon a judgment which it had previously obtained against J. W. Zook. On the same day Wynne notified the trustee of his purchase of the Rothschild judgment and claimed the money. Sommerville answered the writ of garnishment, saying that he held the above-stated sum of money, and explaining from what source he had received it. On the 19th day of December, 1888, an order of sale was issued out of the district court of Galveston county on the Rothschild judgment, then owned and controlled by Wynne, under which the attached property was duly sold by the sheriff on the first Tuesday in March, 1889, to Wynne. Wynne was permitted to intervene in the garnishment suit, and he filed a petition alleging substantially the foregoing facts, and praying for a judgment for so much of the money in the hands of the trustee as was sufficient to satisfy his judgment. The court sustained a demurrer filed by the plaintiff to the pleadings of the intervener, and, as he declined to amend further, dismissed his petition The ground of the demurrer sustained by the court is stated in the demurrer as follows: "Because it says that the same (the intervener's petition) is insufficient in law, and shows on its face that said intervener, Wynne, had exhausted his attachment lien by sale of the lands mentioned in his said plea, and has no lien whatever on the funds in the hands of said W. F. Sommerville." The contention of the appellee is stated as follows in its brief filed in this court: "We contend that Wynne's plea of intervention shows affirmatively that he has no right to the surplus funds in the hands of Sommerville, the garnishee. We admit, for the purpose of this appeal, that on the day Sommerville made the sale of the lands, and received into his hands the surplus over which this controversy arises, that Wynne had a decretal or judgment lien on this surplus, perhaps superior to the bank's garnishment lien, growing out of his judgment foreclosing his attachment lien on the lands; and if he had then filed his plea of intervention, setting up his attachment of the lands and judgment of foreclosure, and alleged his lien to be in full force, and not extinguished, discharged, or dormant, and asked that it be transferred from the land to the surplus, he would have been entitled to recover, or, at least, his plea would not have been subject to this demurrer; for his lien, being in full force, and not extinguished by a sale of the property upon which it rested, would have attached itself to the proceeds or surplus. But the plea on its face shows that after the 26th day of November, 1888, (which was the day Sommerville sold the land under his deed of trust,) namely, on the 19th day of ...