Solinsky v. O'Connor

• Decision Date: 14 December 1899
• Citation: 54 S.W. 935
• Parties: SOLINSKY v. O'CONNOR et al.
• Court: Texas Court of Appeals

54 S.W. 935

SOLINSKY v. O'CONNOR et al.

Court of Civil Appeals of Texas.

December 14, 1899.

Appeal from district court, Jefferson county; Stephen P. West, Judge.

Action by O'Connor & Smoot and others against F. A. Hyatt & Co. and others. From a judgment for plaintiffs, defendant J. J. Solinsky appeals. Reversed.

Geo. C. Greer, for appellant. Greer & Greer, for appellees.

GILL, J.

O'Connor & Smoot, plaintiffs below, brought this suit against F. A. Hyatt & Co. to recover against them upon two promissory notes aggregating $27,000, and to foreclose a duly-registered deed of trust given by Hyatt & Co. upon certain personal property to secure the payment of the notes. J. J. Solinsky, appellant, and the appellee O. G. Greeves were made parties defendant by an allegation that Frank Perry, as agent of O'Connor & Smoot, had placed certain of the property covered by the trust deed in the hands of Greeves, to be sold by him, and the proceeds paid to O'Connor & Smoot as a credit on the notes sued on; that Solinsky, with notice that the goods in Greeves' hands were subject to plaintiffs' lien, procured a garnishment to be issued against Greeves upon a judgment in favor of Solinsky against Hyatt & Co. for the purpose of subjecting said property in the hands of Greeves to the payment of his (Solinsky's) judgment. Greeves' answer as garnishee is set out in the petition, showing that he set up the fact that the property had been placed in his hands by Frank Perry, as agent of O'Connor & Smoot, to be sold and applied to their debt, but he did not make O'Connor & Smoot parties to the garnishment proceedings. Solinsky's contest of the answer is also set out in full, as is also the judgment against the garnishee for the amount of the Solinsky judgment. O'Connor & Smoot are alleged not to have been parties to the garnishment proceedings. The prayer was for judgment on the notes, and foreclosure of their mortgage lien against Hyatt & Co. and all the defendants for injunction against Solinsky and Greeves, restraining Solinsky from issuing execution against Greeves on the garnishment judgment, and restraining Greeves from turning over to Solinsky any of the property or its proceeds in satisfaction of the judgment. A temporary injunction was issued in accordance with the prayer. Hyatt & Co. did not answer. Greeves answered, stating the amount of property and proceeds on hand, expressing a willingness to pay to whatsoever party was entitled to receive it, and praying to be protected against one or the other of the judgments. Solinsky answered by general and special exceptions, general denial, and the allegation that the property in Greeves' hands, which he had subjected by garnishment, was not included in the description contained in the trust deed. The exceptions were overruled. Trial was had before the court without a jury, and resulted in a judgment in favor of O'Connor & Smoot for the amount of the note as against Hyatt & Co., for foreclosure of the mortgage lien as prayed for, subjecting the property in the hands of Greeves to the payment of the O'Connor & Smoot notes, and perpetuating the injunction against Solinsky and Greeves. Solinsky alone appeals.

The first, second, and third assignments of error assail the action of the court in overruling the general and special exceptions of Solinsky to plaintiffs' petition; the exceptions attacking the sufficiency of description of the property in the mortgage as set out in the...