Carter v. Bush

Decision Date05 December 1890
Citation15 S.W. 167
CourtTexas Supreme Court
PartiesCARTER <I>et al.</I> v. BUSH.

Appeal from district court, Hunt county; E. W. TERHUNE, Judge.

Montrose & Toombes, for appellants. B. F. Looney, for appellee.

GAINES, J.

O'Neal & Evans, partners engaged in a mercantile business, being unable to meet their obligations, transferred their assets, which consisted of goods and other personal property and credits, to the appellee; the goods to be sold, and the credits to be collected, so far as necessary for the payment of certain of their creditors. The conveyances stipulated that, after the payment of the secured creditors, the remainder of the assets should be returned to them. As to the goods the instruments are chattel mortgages, and as to the notes and accounts they are in the nature of a pledge. Appellants, being creditors of the firm, and not secured by the transfer, brought suit upon their demand, and caused a writ of garnishment to issue, and to be served upon the appellee. Appellee answered, denying any indebtedness to the defendants O'Neal & Evans, and that he had any effects of theirs in his hands, except the goods, other personal property, and credits above mentioned, and alleging that they were held under the written transfer to which we have referred. He also answered, in substance, that the debts secured by these instruments amounted to the sum of $45,990.62; that the goods, etc., although they were invoiced at the time he took possession as of the value in the aggregate of $49,795.20, were in fact worth not more than one-half or two-thirds of that sum; and that the notes and accounts, amounting to $12,331.52 of face value, were not worth more than 33 1/3 cents on the dollar. He admitted having received $8,000 in cash from the sale of the goods before the invoice was completed, and which, as we understand it, were not embraced in that invoice. The plaintiff filed a pleading contesting the answer of the garnishee; alleging, in substance, that the property in the hands of the garnishee was sufficient to pay the secured debts, if properly administered, and to leave a sufficient surplus to discharge his own claim; and prayed that the case be continued until the trust should be fully administered, and that the garnishee should then be required to answer as to any surplus that might remain after the payment of debts secured by the mortgages. The plaintiff having obtained a judgment against the defendants in the principal suit, the cause, without objection from either party, proceeded to trial upon the issues made by the answer and the contest. The court, after hearing the evidence, determined that the assets in the hands of the garnishee were not more than sufficient to pay the debts secured by it, and entered judgment dismissing the garnishee, with his costs, including $100 as his attorney's fee.

The case presents a novel question of practice. The point is not made that the surplus of the mortgaged property could not be reached by the process of garnishment. If it had been, ample authority could have been found to the contrary. But while there are many cases in the courts of other states, with statutes similar to ours, in which it has been held that the trustee or mortgagee, in possession of mortgaged chattels, is answerable in garnishment to the creditor of the mortgagor to the extent of the latter's interest, we have found no case in which the practice as to the time and mode of arriving at that interest is discussed. The correct practice, however, is indicated in Moody v. Carroll, 71 Tex. 148, 8 S. W. Rep. 510, though the point was not necessarily involved in the decision of that case. Our statutes contain no express provision as to the procedure in a case like the present. It is, however, provided that "should it appear by the garnishee's answer, or otherwise, that the garnishee has in his possession, or had when the writ was served, any effects of the defendant liable to execution, the court shall render a decree requiring the garnishee to deliver up to the sheriff or any constable presenting an execution in favor of the plaintiff against the defendant such effects, or so much of them as may be necessary to satisfy such execution." Rev. St. art. 206. But the garnishee...

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11 cases
  • Alexander v. Berkman
    • United States
    • Texas Court of Appeals
    • December 22, 1927
    ...Co. v. English (Tex. Civ. App.) 34 S. W. 651. I think our Supreme Court has answered most of these questions fully. Carter et al. v. Bush, 79 Tex. 29, 15 S. W. 167; Simon v. Ash, 1 Tex. Civ. App. 202, 20 S. W. 719; McClellan v. Routh, 15 Tex. Civ. App. 344, 39 S. W. 607. If the garnishment ......
  • Houston Nat. Exch. Bank v. Sapp
    • United States
    • Texas Court of Appeals
    • January 9, 1923
    ...although the suit began against the bank as garnishee. Ry. Co. v. McDonald, 53 Tex. 517; Ry. Co. v. Hume, 59 Tex. 47; Carter v. Bush, 79 Tex. 29, 15 S. W. 167. It was the duty of the trustee (the Rosebud Bank) to set up its trust relation, and at least to have notified the appellant, as it ......
  • Sorenson v. City Nat. Bank
    • United States
    • Texas Supreme Court
    • May 16, 1932
    ...Berry v. Davis, 77 Tex. 191, 13 S. W. 978, 19 Am. St. Rep. 748; Curtis v. Ford, 78 Tex. 262, 14 S. W. 614, 10 L. R. A. 529; Carter v. Bush, 79 Tex. 29, 15 S. W. 167. The record in this case shows that it has been tried once in the justice's court, and at least three times in the county cour......
  • Graham Nat. Bank v. First Nat. Bank
    • United States
    • Texas Court of Appeals
    • January 23, 1932
    ...was said: "It is well settled that a chose in action is not subject to garnishment. Price v. Brady, 21 Tex. 614." In Carter Bros. v. Bush, 79 Tex. 29, 15 S. W. 167, 168, the following was said in an opinion by Justice Gaines: "We do not wish to be understood as holding that the choses in ac......
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