Casray Oil Corporation v. Royal Indemnity Co.

• Decision Date: 25 June 1942
• Docket Number: No. 11414.,11414.
• Citation: 165 S.W.2d 244
• Parties: CASRAY OIL CORPORATION v. ROYAL INDEMNITY CO.
• Court: Texas Court of Appeals

165 S.W.2d 244

CASRAY OIL CORPORATION v. ROYAL INDEMNITY CO.

No. 11414.

Court of Civil Appeals of Texas. Galveston.

June 25, 1942.

Rehearing Denied July 16, 1942.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Garnishment proceeding by the Casray Oil Corporation against the Royal Indemnity Company, as surety on a supersedeas bond, to recover the proceeds thereof, in which Fred R. Switzer and the Chapman Minerals Corporation were made parties defendant and defendant Switzer filed a cross-action to recover on an assignment to him of so much of a judgment for defendant minerals corporation as awarded it attorneys fees. Judgment for garnishee and cross-complainant, and plaintiff appeals.

Affirmed.

Sears, Blades, Moore & Kennerly and Fred W. Moore, all of Houston, for appellant.

Vinson, Elkins, Weems & Francis, Fred R. Switzer, and Thomas Fletcher, all of Houston, for Fred R. Switzer, trustee.

Wood, Gresham, McCorquodale & Martin and Newton Gresham, all of Houston, for Royal Indemnity Co., garnishee.

CODY, Justice.

This appeal is primarily a contest between appellant and appellee, Fred R. Switzer, as rival claimants of the right to recover upon a supersedeas bond executed by appellee, Royal Indemnity Company, as surety, to supersede on appeal the enforcement of the judgment rendered, in the case of Frazier Jelke Company v. Chapman Minerals Corporation, on February 26, 1940. Said cited case was a garnishment suit brought by Frazier Jelke Company, and the Chapman Minerals Corporation answered the writ of garnishment to the effect that it was not indebted to O. R. Seagraves, and that he owned no stock in said company. The Frazier Jelke Company contested said answer, but the jury sustained said answer, and found that $2,500 was a reasonable attorney's fee incurred by Chapman Minerals Corporation; the Court accordingly rendered judgment that plaintiffs take nothing as against said garnishee, and that said garnishee, Chapman Minerals Corporation recover the sum of $2,500 as reasonable attorneys' fees and that said garnishee recover from plaintiffs, jointly and severally, "all costs of this proceeding, which shall be taxed against plaintiffs, jointly and severally, and paid by such plaintiffs, and it is further ordered and decreed that an execution or executions issue against the plaintiffs, jointly and severally, to enforce this judgment for attorneys' fees and all costs of this proceeding, to all of which plaintiffs then and there in open court excepted."

The basis of the claim of appellee Fred R. Switzer, Trustee, is as follows: He was a member of the firm who represented said Chapman Minerals Corporation in said suit, and on February 29, 1940 (Three days after judgment was rendered), took an assignment from it of "all that portion of said judgment awarding to the garnishee the said sum of $2,500 attorneys' fees, with full authority to demand and receive same to his use as trustee, and upon payment thereof, or any part thereof, to give discharge for the same, and the said Chapman Minerals Corporation hereby authorizes the said Fred R. Switzer, as trustee, in its name, but at his own cost and charge, to sue out execution and all other legal process, that may be necessary for the enforcement of said judgment for the said $2500.00. It is understood and agreed, however, that should said judgment be set aside, either upon a motion for new trial, or upon appeal, that the assignment herein shall be null and of no force or effect." Said assignment was filed in the papers of the case, and due and proper marginal notation of said assignment was made upon the minutes of the Court where said judgment was recorded.

Thereafter Frazier Jelke Company duly perfected their appeal to this Court, and superseded execution upon the judgment of the trial court by filing the aforesaid supersedeas bond on May 15, 1940. The condition of the bond was that appellants "shall prosecute their appeal with effect and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against appellants, they shall perform its judgment sentence or decree and pay all such damages as said court may award against them."

Thereafter, on March 27, 1941, the judgment of the trial court was by this Court in all things duly affirmed, Frazier Jelke & Co. v. Chapman Minerals Corporation, 149 S.W.2d 1101, and judgment was by this Court duly rendered against appellants, jointly and severally, "and their surety, Royal Indemnity Company, the sum adjudged below and all costs in this case incurred. It is further ordered that this decision be certified below for observance."

Thereafter appellant sued out a writ of error to the Supreme Court which was dismissed June 11, 1941. Thereafter execution was issued by the Clerk of this Court on September 25, 1941, for Court costs in the sum of $39, which accrued in this Court and the Supreme Court. Such costs were collected by him from Fred R. Switzer on November 29, 1941 and mandate was thereupon issued.

Appellant's claim of the right to the proceeds of the aforesaid supersedeas bond is based upon a writ of garnishment which it applied to have served, and caused to be served on appellee Royal Indemnity Company, as garnishee, on July 15, 1941. In said application for writ of garnishment appellant alleged that it, in a suit pending on the dockets of the district court of Harris County, numbered D-270,147, style Casray Oil Corporation v. Chapman Minerals Corporation et al., sues for a debt of $5,000, plus interest, and in connection with said application filed bond in more than double the alleged debt. Appellee Royal Indemnity Co., Garnishee, filed its original answer wherein it denied that it was indebted to Chapman Minerals Corporation and O. R. Seagraves, etc., etc. In connection with said answer, and in a part thereof, said appellee alleged that on or about February 26, 1940, said Chapman Minerals Corporation obtained a judgment against Frazier Jelke Company for the sum of $2,500, and that in said case the Frazier Jelke Company took an appeal, and a supersedeas bond was executed and filed by such appellants on May 21, 1940, said appellants being principals on said bond and the garnishee (Royal Indemnity Company) being surety thereon. Said appellee alleged its information and belief that the judgment had become final against Frazier Jelke Company and that said Frazier Jelke Company was primarily liable on said bond, but that said appellee (Royal Indemnity Company) was secondarily liable thereon, and that it would have to pay said judgment if Frazier Jelke Company did not. It went on to allege its notice of the assignment of said judgment to Fred R. Switzer, Trustee, under date of February 29, 1940, and also alleged it had been notified by Fred R. Switzer, Trustee, that he claims to be the owner of said judgment. Said Royal Indemnity Company alleged that it did not know who owned said judgment except as disclosed by the court records as between appellant (Casray Oil Corporation) and Fred R. Switzer, Trustee, and Chapman Minerals Corporation. It requested that Fred R. Switzer and Chapman Minerals Corporation be made parties so that their claims of right to be paid from the proceeds of the bond be adjudicated to the end that Royal Indemnity Company be not subjected to double liability. It also pled for reasonable attorneys' fees in the sum of $500.

Thereafter, on August 16, 1941, and before appellant answered in said garnishment suit, the Royal Indemnity Company amended its said answer, wherein its allegations were to the same effect, except that it admitted its absolute liability on its supersedeas bond, and asked that the Court determine to whom it should make payment.

On August 19, 1941, appellant filed its controverting affidavit to the Royal Indemnity Company's answer. On August 27, Fred R. Switzer, Trustee, filed his original answer, alleging facts the most of which the substance thereof has heretofore been stated and he particularly pled the assignment to him of the judgment in the Frazier Jelke Company suit, on February 29, 1940, and joined to his answer a cross-action to recover upon said assignment. The answer of Chapman Minerals Corporation (signed by Fred R. Switzer, its attorney) comported with Switzer's answer. And on October 27, 1941, appellant answered Switzer's cross-action, among other things alleging that the assignment...