Amarillo Nat. Bank v. Panhandle Tel. & Tel. Co.

• Decision Date: 20 June 1914
• Docket Number: (No. 636.)
• Citation: 169 S.W. 1091
• Parties: AMARILLO NAT. BANK v. PANHANDLE TELEPHONE & TELEGRAPH CO. et al.
• Court: Texas Court of Appeals

Page 1091

169 S.W. 1091

AMARILLO NAT. BANK v. PANHANDLE TELEPHONE & TELEGRAPH CO. et al.

(No. 636.)

Court of Civil Appeals of Texas. Amarillo.

June 20, 1914.

Rehearing Denied October 10, 1914.

Appeal from District Court, Potter County; Jas. N. Browning, Judge.

Action by the Amarillo National Bank against the Panhandle Telephone & Telegraph Company and others, garnishees. From an order holding the debt garnished not subject, the bank appeals. Affirmed.

A. A. Lumpkin, of Amarillo, for appellant. Reeder & Dooley, Madden, Trulove & Kimbrough, W. Boyce, and Gustavus & Jackson, all of Amarillo, for appellees.

HUFF, C. J.

The Amarillo National Bank, in a suit pending in the district court of Potter county against H. A. Campbell and others, sued out a writ of garnishment and caused the same to be served upon the Panhandle Telephone & Telegraph Company and H. H. Davenport & Co., on the 2d day of March, 1911. The suit against Campbell was for $8,848.90, interest and attorney's fees, which suit was afterwards prosecuted to judgment. On the 7th day of July, 1911, in the same suit, appellant sued out a second garnishment against J. E. Nunn and H. B. Sanborn, which was duly served on the said parties on said date last above mentioned. In each of the writs the garnishees were required to answer what, if anything, they were indebted to H. A. Campbell. The firm of H. H. Davenport & Co. answered they were indebted to H. A. Campbell in the sum of $1,145.83, and answered the other statutory interrogatories in the negative. The Panhandle Telephone & Telegraph Company answered that on the 20th day of September, A. D. 1909, Campbell obtained judgment against H. H. Davenport & Co., a firm composed of H. H. Davenport and W. W. Taylor, and at said time a mechanic's, materialman's and lumberman's lien was foreclosed against the property of the Panhandle Telephone & Telegraph Company to secure the payment of said judgment, except the sum of $104.16, attorney's fees, included in said judgment; that the judgment has not been paid; that it was ready, willing, and able to pay to the parties entitled to the same; that it was informed that after service of said writ on, to wit, April 1, 1911, that one J. E. Nunn was claiming to be the owner of the judgment and entitled to the proceeds thereof and prayed that Nunn be made a party thereto, and that it be protected in the payment of said sum, etc. J. E. Nunn answered, denying indebtedness, and answering in the negative the other statutory interrogatories. H. B. Sanborn answered that on the 18th day of April, 1911, H. A. Campbell transferred to him the judgment for the cash consideration of $1,327.25. He set up the garnishment proceedings by the bank against the telephone company, and alleged that he paid into the bank the consideration given for the judgment to be held in escrow and as a special deposit until any and all questions with reference to his title and right to said judgment in favor of H. A. Campbell should be settled and adjusted. He further set up that on April 1, 1911, the firm of Madden, Trulove & Kimbrough, representing themselves to be the attorneys of record for H. A. Campbell, purported to transfer the judgment to J. E. Nunn for a recited consideration of $1,320.94; that Nunn is setting up a pretended claim of title to the judgment. It is alleged by him that the attorneys were without legal authority to make such transfer, and were not authorized by Campbell to do so. He further alleges if Nunn is the owner of such judgment, then Sanborn was not indebted to Campbell, but if Nunn was not the owner, then he was indebted in the sum of $1,327.25. The appellant bank, in reply to the answers of the several garnishees, set up the service of the writs of garnishment and that the garnishees each had notice of the service thereof at the date of their alleged purchase of the judgment. The reply of appellant is lengthy, but, in effect, it denies a bona fide assignment of the judgment to Nunn, and also alleged the making of the deposit in the bank by Sanborn the consideration paid him for the judgment.

J. E. Nunn, by a first amended answer, and by a supplemental answer, set up fully and at length his defense to Sanborn's answer, and to his rights against the garnishment. Among other things, he alleged that he was the owner of the, judgment in favor of H. A. Campbell in cause No. 1080 (Kellogg Switchboard Supply Co. v. H. H. Davenport et al.); that said judgment was based upon a note executed by H. H. Davenport & Co. to H. A. Campbell, for the sum of $1,000, interest and attorney's fees; that the note, he was informed and believed, was indorsed before Campbell intervened in cause No. 1080, in which judgment was thereafter obtained in favor of Campbell, and that about the time of Campbell's intervention in the suit he transferred and assigned the note to one C. E. Oakes; that the note was placed in the hands of S. H. Madden, of the law firm of Madden, Trulove & Kimbrough, for the purpose of bringing suit thereon; that Campbell informed the attorney that he had transferred the note to C. E. Oakes,...