Alexander v. Berkman

• Decision Date: 22 December 1927
• Docket Number: (No. 609.)
• Parties: ALEXANDER et al. v. BERKMAN et al.
• Court: Texas Court of Appeals

3 S.W.2d 864

ALEXANDER et al. v. BERKMAN et al.

(No. 609.)

Court of Civil Appeals of Texas. Waco.

December 22, 1927.

Rehearing Denied March 1, 1928.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by the First National Bank of Waco against Mrs. Ray W. Goldberg and others, wherein J. Berkman was made garnishee, and wherein James P. Alexander and T. E. Haney intervene. From the judgment, James P. Alexander and others appeal. Reversed and rendered.

Jas. P. Alexander, of Waco, for appellants.

W. L. Eason and Allan D. Sanford, both of Waco, for appellees.

GALLAGHER, C. J.

The First National Bank of Waco, one of the appellees herein, sued Mrs. Ray W. Goldberg, Sophia Goldberg, and Ida Mae Bornstein (née Goldberg), and her husband, Stanley L. Bornstein, on a promissory note for the principal sum of $1,215, with interest and attorney's fees alleged to have accrued thereon. A writ of garnishment was sued out in said cause against appellee Berkman individually and as independent executor of the estate of Mary G. Goldberg Thomas, deceased, and served on him on the 12th day of September, 1925. Said writ commanded said garnishee to appear on the 5th day of October, 1925, the same being the first day of the ensuing term of said court, and answer what, if anything, he was indebted to said several defendants both in his individual capacity and as executor of said estate. Since the indebtedness of the garnishee to Mrs. Bornstein is the only issue involved in this appeal, further reference to the other parties defendant in the original suit may be omitted.

The garnishee filed his answer in said cause on October 6, 1925, appearance day of said term. In said answer he denied being individually indebted to Mrs. Bornstein in any sum whatever. He further answered that Mrs. Bornstein, on September 8, 1925, in a certain cause entitled Ida Mae Goldberg et al. v. J. Berkman et al., pending in said court, and numbered 27441 on the docket thereof, recovered a judgment against him, the said garnishee, as independent executor of the estate of Mary G. Goldberg Thomas, deceased, in the sum of $1,000, and made the judgment in said cause a part of his said answer. He further set out in said answer that motion for new trial in said cause had been filed and overruled on October 3, 1925, and that notice of appeal had been given by Morris Thomas, one of the parties to said suit. The original petition in said cause No. 27441 shows that the same was a suit brought by Mrs. Bornstein and husband and other legatees under the will of Mrs. Thomas, against said Berkman as independent executor of said will and the remaining legatees thereunder, and against Morris Thomas, the surviving husband of said testatrix, for partition and distribution of her estate. The answer of the defendant Berkman in said cause made the will of Mrs. Thomas, a copy of which was attached thereto, a part thereof. The will of said Mrs. Thomas was made by her while she was Mary G. Goldberg and before her marriage to said Thomas. By the terms thereof she bequeathed to Mrs. Bornstein and thirteen others specific legacies amounting in the aggregate to $8,000. She bequeathed the residue of her estate to the Congregation Agudath Jacob, a religious corporation. Said answer showed that the entire estate which came into the hands of said executor consisted of seven promissory notes, the principal of which aggregated the sum of $8,687.50. Said answer further showed that said executor had collected two of said notes and various sums of accrued interest on all of the same, and that, after paying all costs and expense of administration, he had on hand in cash the sum of $2,465.92 and five of said notes still uncollected, the principal of which aggregated $6,687.50. Said executor in said answer further stated that he was willing that the estate remaining in his hands be partitioned among the parties entitled thereto, and asked the court to determine the several parties entitled to said funds and to order the same distributed according to their respective interests. He further stated that it was impossible to partition said notes in kind, and recommended that they be sold and the proceeds thereof partitioned. He further alleged that the defendant Morris Thomas was claiming some interest in the property in his hands, and asked that such claim be canceled. He further asked that his account as executor be approved, that he be allowed certain additional compensation, and that he be discharged from his trust. The pleadings of said Thomas are not found in the record, and the nature of his claim is not specifically stated, though the assertion of a claim on his part was also alleged by the plaintiffs in said suit.

The judgment of the court in said cause No. 27441, made a part of the garnishee's answer in this cause, recited that the several parties to said suit appeared in person or by attorney, and that said Morris Thomas, of the state of New York, by his duly authorized attorney, had entered an appearance and filed an answer therein and pleaded to the jurisdiction of the court, and that said plea was considered by the court and overruled. Said judgment further recited that the court, after hearing the evidence, found that said Morris Thomas had no interest in any of the property or funds in the hands of said executor, and divested him of all right, title, and interest therein and vested the same in said executor in his representative capacity, and canceled all claims asserted by said Thomas in or to any of said property. The court also found that the several parties to said suit were entitled to receive out of the proceeds of said property in the hands of the executor the respective amounts bequeathed to them by the will of the deceased Mrs. Thomas, and awarded to each of them, respectively, a judgment against the executor therefor. The court further appointed the executor a receiver of said notes, and authorized him as such to sell the same and report his action to the court. The court also, in said judgment expressly approved the acts of the executor. It may be further stated in this connection that said executor, acting as receiver under said order of the court, filed his report of the sale of said notes and the bill of costs incurred by him in making such sale, and the same were on the 3d day of October, 1925, duly approved by the court, and said receiver discharged. Said Morris Thomas, defendant in said cause No. 27441, filed his original motion for new trial therein on September 30, 1925, and his amended motion for new trial therein on October 3, 1925, which motion was overruled and notice of appeal given on said day, the same being the last day of that term of the court. Said Thomas in due time perfected his appeal by cost bond, and the judgment of the trial court in said cause was affirmed by this court on the 8th day of April, 1926. 283 S. W. 230. None of the other parties to said suit appealed from said judgment.

Mrs. Bornstein, by written assignment dated September 1, 1925, but not delivered until after the service of said writ of garnishment, assigned $250 of the legacy bequeathed to her by the will of Mrs. Thomas, to appellant James P. Alexander. Thereafter on the 23d day of March, 1926, she executed another instrument, assigning to appellant Alexander the sum of $350 to be paid out of the judgment recovered by her against said executor in said cause No. 27441. It is conceded that the sum of $250 theretofore assigned to appellant Alexander is included in this latter assignment. Mrs. Bornstein thereafter, on the 27th day of March, 1926, assigned the remaining $650 of said judgment to appellant T. E. Haney. On the 1st day of May, 1926, appellants Alexander and Haney filed their plea of intervention in this cause, in which they set up their respective assignments as aforesaid, alleged that the proceeds of said judgment were not subject to garnishment, and prayed for recovery of the funds awarded to Mrs. Bornstein by the judgment in said cause No. 27441 and still remaining in the hands of said executor, the garnishee herein.

The garnishee on the 8th day of June, 1926, filed an amended answer in this cause, in which he alleged that the judgment of the trial court in said cause No. 27441 had been duly affirmed by the Court of Civil Appeals (283 S. W. 230) and that the mandate of said court had been filed in the trial court on the ____ day of May, 1926. He made appellants and Mrs. Bornstein and her husband parties to such garnishment suit, and prayed for service of process upon them and that he be protected from a double recovery.

Appellee bank on June 11, 1926, recovered judgment against Mrs. Bornstein for the sum of $1,473.13. This cause came on for trial in said court on the 5th day of August, 1927. The court having heard the evidence, rendered judgment in favor of appellee bank against the garnishee J. Berkman as independent executor of the estate of Mrs. Thomas, deceased, in the sum of $750, and in favor of appellant James P. Alexander against said garnishee for the further sum of $250. Appellant Haney was denied any recovery. Said judgment is here presented for review.

Opinion.

The principal issue to be determined is whether the legacy bequeathed to Mrs. Bornstein by Mrs. Thomas in her will, and afterwards merged into a judgment in her favor against the executor of said will in the decree for final partition and distribution of Mrs. Thomas' estate, was subject to garnishment either at the time of the service of the writ of garnishment herein or at the time the garnishee filed his answer on appearance day of the term of court to which said writ was made returnable. Appellants contend that the recovery awarded in said judgment was not subject to garnishment on either of said dates. Appellee bank contends the contrary. Since it is conceded that, if the recovery awarded to Mrs. Bornstein by said judgment was subject to garnishment on October 6, 1925,...