Bank of North Texas v. Red Henry Painting Co.
| Decision Date | 03 April 1974 |
| Docket Number | No. 853,853 |
| Citation | 509 S.W.2d 444 |
| Parties | The BANK OF NORTH TEXAS, Appellant, v. RED HENRY PAINTING COMPANY et al., Appellees. |
| Court | Texas Court of Appeals |
Robert W. Dupuy, Corpus Christi, for appellant.
Paul Hill, Zarksy & Hill, Franklin L. Smith, Corpus Christi, for appellees.
This is a summary judgment case. Red Henry Painting Company brought garnishment proceedings against Oscar Soliz, District Clerk of Nueces County, Texas, as garnishee, seeking funds held by him. Garnishor alleged that these funds belonged to J. B. Price and Sam Higbee, doing business as Price Construction Company, and that garnishor had an unsatisfied judgment against Price and Higbee. Garnishee answered that he was indebted to Price and Higbee. The Bank of North Texas, Hurst, Texas, intervened setting up a claim of ownership of those funds. The painting company filed a motion for summary judgment. The bank answered with an affidavit in opposition . The trial court, after a hearing, granted the motion of the painting company. In its judgment, the trial court recited that the court considered the pleadings on file and that they show an absence of any genuine issue as to any material fact. The bank appeals.
In its application for writ of garnishment in this case, the plaintiff painting company alleged that it had, in cause no. 111,185--E, on the docket of the 148th District Court, styled Red Henry Painting Company, Intervenor, v. J. B. Price and Sam Higbee, doing business as Price Construction Company, obtained a judgment (being a default and interlocutory judgment) against Price and Higbee for $5,469.32 with interest, attorney's fees and costs; that the judgment remains unsatisfied; that the garnishee clerk is indebted to Price and Higbee by reason of the fact that on April 10, 1973, a judgment (final) was entered in favor of Price and Higbee against Housing Authority of the City of Corpus Christi and Fort Worth Lloyds in cause no. 111,185--E awarding to Price and Higbee and the Bank of North Texas, Hurst, Texas, the sum of $126,350.41, which sum has been paid into the registry of the court; and that garnishee as clerk of the court is the custodian of such funds and he is, therefore, indebted to Price and Higbee. This cause in garnishment was numbered 118,095--E in the 148th District Court, Nueces County, Texas.
The garnishee clerk answered the plaintiff's application for writ by stating, in substance, that the garnishee is indebted to Price and Higbee by reason of cause no. 111,185--E in the amount of $126,350.41, plus some accrued interest; that these funds were paid into the registry of the court in satisfaction of a judgment signed April 10, 1973, providing, among other matters, as follows:
'. . . the sums shall be held by the Clerk of this Court, subject to the following provisions of this judgment:
(a) The sum of $32,989.91 plus interest thereon at the rate of $4.39 per day from the 10th day of April, 1973, shall be paid by the Clerk of this Court to the Department of Treasury-Internal Revenue Service of America.
(b) The sum of $30,000 shall be paid by the Clerk of this Court to Stone & Berryman, Inc., and Michael Thompson.
(c) The sum of $16,850.00 shall be held by the Clerk in the registry of this Court, pending final judgments in Cause No. 117,352--E Celanese Coating Company, Devoe Paint Division Vs. The Housing Authority of the City of Corpus Christi, et al, and Cause No . 117,345--E, Red Henry Painting Company Vs. The Housing Authority of the City of Corpus Christi, et al, on the docket of this Court.
(d) The balance of said funds, including any balance remaining in the registry of this Court out of the funds held under paragraph (c) hereof, shall be paid by the Clerk of this Court to the Plaintiffs herein, J. B. Price and Sam Higbee, doing business as Price Construction Company, and Bank of North Texas, Hurst, Texas.'
The bank intervened, in answer to the pleadings in garnishment of the painting company and the clerk, and alleged that it, the bank, owns the judgment and funds resulting from the judgment of cause no. 111,185--E; that Price and Higbee have no interest in the proceeds of that judgment; that Price and Higbee assigned all interest in that judgment of cause no. 111,185--E before the rendition of any judgment in favor of the plaintiff painting company; and that, therefore, the clerk should be ordered to pay all sums he now holds to the bank.
The garnishor painting company then filed an answer to the bank's plea in intervention. Thereafter, the painting company filed its motion for summary judgment and a later amended motion for summary judgment alleging there that the assignment of funds (by Price and Higbee to the bank) is prohibited by Art. 5472e, Vernon's Ann.Civ.St .; that there is no genuine issue as to any material fact, all according to certified documents attached to the motion.
To its amended motion for summary judgment, the painting company attached a copy of its application for writ of garnishment (which we have described above); a copy of the writ of garnishment with return thereon; and a copy of its default judgment in cause no. 111,185--E. This default judgment, signed and entered May 16, 1972, was in favor of the plaintiff painting company against Price and Higbee for $5,469.32 plus interest and attorney's fees of $1,825.00.
The bank opposed this motion by an instrument denominated 'Affidavit in Opposition To Plaintiff's Motion for Summary Judgment' . This affidavit was executed by Bill Daniel, who stated that he was the president of the bank; that the funds being held by the clerk resulted from a judgment, in cause no. 111,185--E, the bank obtained against Fort Worth Lloyds and the Housing Authority of the City of Corpus Christi; that the cause of action arose by virtue of a valid assignment by Price and Higbee to secure funds advanced to Price and Higbee.
Appellant, in the three points of error, asserts that the trial court erred in granting the appellee's motion for summary judgment in the following respects:
'(a) Appellee failed to establish that 'there was no genuine issue as to any material fact' that Appellant did not own or have an interest in the garnished fund.
(b) Appellee failed to present summary judgment evidence...
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Celanese Coating Co., Devoe Paint Division v. Soliz
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