Citizens Industrial Bank of Austin v. Oppenheim

• Decision Date: 11 May 1938
• Docket Number: No. 8630.,8630.
• Parties: CITIZENS INDUSTRIAL BANK OF AUSTIN v. OPPENHEIM et ux.
• Court: Texas Court of Appeals

118 S.W.2d 820

CITIZENS INDUSTRIAL BANK OF AUSTIN v. OPPENHEIM et ux.

No. 8630.

Court of Civil Appeals of Texas. Austin.

May 11, 1938.

Rehearing Denied June 1, 1938.

Appeal from District Court, Travis County; Roy C. Archer, Judge.

Proceeding by Citizens Industrial Bank of Austin, Tex., against S. Oppenheim and his wife to enjoin collection of a judgment against plaintiff and to have a judgment against defendants which was assigned to plaintiff set off against judgment enjoined, in which proceedings Mrs. Lyon intervened. From a judgment for defendants and intervener, plaintiff appeals.

Affirmed.

William Yelderman and Cofer & Cofer, all of Austin, for appellant.

Hart, Patterson, Hart & Brown and Benton Coopwood, all of Austin, for appellees.

BLAIR, Justice.

Appellant, Citizens Industrial Bank of Austin, Texas, instituted this proceeding against appellees, S. Oppenheim and Mrs. S. R. Oppenheim, husband and wife, for an injunction to compel the set-off of mutual judgments. Appellees answered that appellant purchased the judgment which it sought to set off against a judgment held by appellees against appellant, with knowledge and notice of the equities of the intervener, Mrs. Lyon, in the judgment recovered by appellees against appellant bank. A trial to the court without a jury resulted in judgment refusing to set off the mutual judgments; hence this appeal.

We have reached the conclusion that the trial court's judgment should be affirmed. The evidence showed that in 1934, appellees, S. Oppenheim and S. R. Oppenheim, recovered a judgment against the appellant bank for more than $1,500 as damages for the conversion of certain jewelry which appellees had pledged as security for a loan made by appellant bank to the Oppenheims. In that suit it was alleged and proved that the jewelry belonged to intervener, Mrs. Lyon, sister of Mrs. Oppenheim, who loaned it to Mrs. Oppenheim for the purpose of enabling her to put it up as collateral security for a loan from appellant bank. Citizens Industrial Bank v. Oppenheim, Tex.Civ.App., 92 S.W.2d 312, error ref., which case was tried by the same court trying the instant case.

The Schaeffer Garment Company, a corporation, recovered judgment against S. Oppenheim in the county court of Travis County, Texas, which together with interest and cost at the time of the trial of this case aggregated about $600. This judgment was based upon a judgment recovered in an Oklahoma court upon an open and verified account of Oppenheim. By written assignment, dated April 20, 1936, and for a consideration of $125, appellant bank purchased the Schaeffer judgment. In May, 1936, appellant bank instituted this suit to enjoin the collection of the Oppenheim judgment against it, based upon the conversion of the jewelry, and to compel a set-off of the judgment which it had purchased from Schaeffer Company. Appellees and intervener alleged and offered proof from which the trial judge could have concluded that immediately after the rendition of the judgment in favor of appellees against appellant bank in 1934, appellees made an oral assignment and transfer of two-thirds of same to Mrs. Lyon, in consideration of and in payment of the jewelry that she loaned Mrs. Oppenheim for the purposes above stated; and that later, on May 25, 1936, two days after this suit was filed, by written assignment, appellees transferred two-thirds of the judgment to intervener, Mrs. Lyon, and one-third to the attorneys who had represented them in securing the judgment against appellant, in accordance with the oral assignments previously made. That at the time of negotiating the loan for which the jewelry of Mrs. Lyon was pledged as security, S. Oppenheim informed the vice-president of the bank, who handled the transaction, of the fact that the jewelry was that of Mrs. Lyon; that it was being loaned to his wife for the purpose of securing the loan, and that Mrs. Lyon would shortly furnish the money with which to take up the loan and secure the release of the jewelry; that within a few days after an installment became due on the loan, Mrs. Lyon sent an express money order for the purpose of taking up the loan; which appellant bank refused to accept and sold the jewelry. At the trial of the case, in which appellees recovered judgment for conversion of the jewelry, the cashier of appellant bank who handled the transaction was present and heard the pleadings read and the evidence adduced, to the...