Bigham Hardware & Furniture Co. v. Sparks Lumber Co.

• Decision Date: 28 April 1915
• Docket Number: (No. 5487.)
• Citation: 176 S.W. 1194
• Parties: BIGHAM HARDWARE & FURNITURE CO. et al. v. SPARKS LUMBER CO. et al.
• Court: Texas Court of Appeals

Page 1194

176 S.W. 1194

BIGHAM HARDWARE & FURNITURE CO. et al. v. SPARKS LUMBER CO. et al.

(No. 5487.)

Court of Civil Appeals of Texas. Austin.

April 28, 1915.

Appeal from Coryell County Court; G. E. Johnson, Judge.

Action by the Bigham Hardware & Furniture Company and others against the Sparks Lumber Company and others. From the judgment, plaintiffs appeal. Reversed and remanded.

Watt L. Saunders and Sadler & Cobb, all of Gatesville, for appellants.

JENKINS, J.

On June 14, 1912, appellant company filed its affidavit in the county court of Coryell county, in cause No. 711, alleging that it was the owner of a judgment for $347 against J. B. Cass, and that said Cass was the owner of $1,000 of stock in the Sparks Lumber Company. A writ of garnishment was issued and served on said lumber company on June 22, 1912. On September 2, 1912, the lumber company filed its answer, denying that J. B. Cass was the owner of any shares of stock in said company. On September 12, 1912, appellants contested said answer, alleging that the books of said lumber company showed that Vera Cass was the owner of $1,000 of stock in said company, but that in truth and in fact said stock belonged to J. B. Cass, and that the same was placed by him in the name of his daughter Vera Cass, who had no interest therein. On October 14, 1912, appellant made Vera Cass (who had married R. H. Glenn) and also her husband parties defendant to said suit, and on January 25, 1913, by amended petition, alleged that M. J. Koza was claiming some interest in said stock, and made him a party defendant. No answer was filed by either J. B. Cass or Vera Glenn and her husband, R. H. Glenn. Koza filed an answer, alleging that he was the owner of said stock, and that he had purchased the same on September 4, 1912, from one E. B. Stribling. Appellants excepted to the answer of Koza, for the reason that it showed he had purchased said stock after the writ of garnishment was served herein on the lumber company, and that it did not appear from said answer that said Stribling ever owned said stock. Said exception was overruled, and the action of the court therein is assigned as error. The exception should have been sustained; and, no answer having been filed by either Cass or Mrs. Glenn and her husband, and the lumber company having filed no answer denying the allegation that the stock stood upon its books in the name of Vera Cass, now Vera Glenn, judgment by default should have been rendered in favor of app...