Austin Nat. Bank v. Bergen
| Decision Date | 30 November 1898 |
| Citation | 47 S.W. 1037 |
| Parties | AUSTIN NAT. BANK v. BERGEN et al. |
| Court | Texas Court of Appeals |
Appeal from Travis county court; A. S. Walker, Judge.
Action by Bergen, Daniel & Gracy against the Bank of Commerce of Kansas City, defendant, and the Austin National Bank, garnishee. There was a judgment for plaintiff against garnishee, and garnishee appeals. Affirmed.
West & Cochran, T. W. Gregory, and G. W. Allen, for appellant. Walton & Hill, for appellees.
The Bank of Commerce of Kansas City was indebted to the appellees for commissions due in negotiating the sale of certain property in the city of Austin, owned by the Bank of Commerce. Suit was brought by appellees on that demand against the bank, and the appellant, the Austin National Bank, was garnished. The Bank of Commerce owned property here in the city of Austin, which, through the negotiations of appellees, was sold to McKean, Eilers & Co. One thousand dollars of the purchase price was paid into the Austin National Bank by McKean, Eilers & Co. After this amount was paid into the bank, appellees brought a suit against the National Bank of Commerce of Kansas City, and garnished the Austin National Bank, who thereupon notified the National Bank of Commerce that $500 of the amount received from McKean, Eilers & Co. was held by the garnishee, to await the outcome of the suit. The appellees, on discovering the mistake that they had made in suing the National Bank of Commerce, instead of the Bank of Commerce, thereafter brought suit against the Bank of Commerce; and during the time between the bringing of the suit against the National Bank of Commerce and the Bank of Commerce the National Bank of Commerce transferred to the Bank of Commerce the full amount of money that the Austin National Bank had collected from McKean, Eilers & Co. This transfer was not of the identical money that was collected by the Austin National Bank, as $500 of that money was then in the possession of the garnishee, and was never transmitted or went into the possession of the National Bank of Commerce or the Bank of Commerce, and the transfer spoken of between the two banks was made by an entry and order upon the books of the bank by direction of the president of the Bank of Commerce and the National Bank of Commerce, who was one and the same person. The garnishee contends that at the time the writ of garnishment was served upon it in this case, by reason of the transfer on the books, as...
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...amount of defendant's liability, if any, can be determined by appropriate judicial procedure. Roelofson v. Hatch, supra; Austin Nat'l Bank v. Bergen, 47 S.W. 1037 (Tex.Civ.App.); Stiff v. Fisher, 2 Tex.Civ.App. 346, 21 S.W. 291; Thomas v. Buehler, 254 S.W.2d 223 (Tex.Civ.App.); Wise & Jacks......
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