Dallas Packing Co. v. Kimberling

Decision Date17 November 1926
Docket Number(No. 7041.)<SMALL><SUP>*</SUP></SMALL>
Citation289 S.W. 149
CourtTexas Court of Appeals

Action by R. A. Kimberling and others against the Dallas Packing Company, in which plaintiffs recovered judgment. Pending suit, plaintiffs issued a writ of garnishment to the American Exchange National Bank, Dallas, Tex. From a judgment for plaintiffs against garnishee, in which it was recited that no one intervened or controverted garnishee's answer, defendant brings error. Affirmed.`

Ballowe & King, of Dallas, for appellant.

Thomas & Lewis, of San Angelo, for appellees.


The parties will be designated appellant and appellees.

By its motion for a rehearing, appellant sets up new matters, which require additional findings from the record, and for that purpose we withdraw our opinion of November 17th, and substitute this one in lieu of it. We adhere, however, to our former judgment affirming the trial court's judgment, and therefore overrule the motion for a rehearing.

Appellees sued appellant for debt and recovered judgment for $2,563.49. Pending the suit appellees issued a writ of garnishment to the American Exchange National Bank of Dallas, Tex., who answered that it owed appellant $300, subject to the alleged claims, among others, of A. A. Long and P. P. Ballowe; that it was disinterested and merely occupied the position of stakeholder, ready to pay the fund to whom the court might direct, and asked for $200 attorney's fees for answering the writ. Appellant, who was defendant in the main suit, filed what was designated "Amended answer controverting the answer of garnishee," denying that garnishee was indebted to it, alleging that it had by check assigned the $300 to A. A. Long before garnishment, and that garnishee arbitrarily refused to honor the check when presented for payment. Appellant did not ask that its assignee be made a party to the suit. Appellant also alleged that the $200 attorney's fee was exorbitant and unreasonable, but that $25 or less would be reasonable, and prayed, first, that, because appellant traversed the nonresident garnishee's answer, the court was without further jurisdiction, and that the cause be transferred to the county of garnishee's residence; and, second, in the alternative, that judgment be rendered for A. A. Long and P. P. Ballowe for the $300 and for costs of suit. Just why appellant asked for judgment for P. P. Ballowe is not shown by its pleadings. P. P. Ballowe appeared as counsel for appellant in the case both in the trial court and in this court. The trial court construed these pleadings and rendered judgment for appellees against garnishee bank for the $300, out of which costs, including garnishee's attorney's fee for $25, were to be first paid. The judgment recites that no one intervened or controverted garnishee's answer who had any interest in the fund. By this appeal appellant assigns fundamental error solely, which is addressed to the jurisdiction question.

In our former opinion we held that appellant's answer and controverting affidavit did not, in fact, traverse garnishee's answer, but that such pleadings admitted every material fact contained in garnishee's answer, and was simply an attempt on the part of appellant to set up defenses for persons who were not parties to the suit and for whom appellant had no right to appear to defeat appellees' right to the garnishment fund. We still maintain this view. We further held that, since appellant has...

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6 cases
  • Burr v. Lane
    • United States
    • Washington Court of Appeals
    • 14 de janeiro de 1974
    ...discretion being as to amount. Carter v. First Nat'l Bank of Sandersville, 15 Ga.App. 55, 82 S.E. 628 (1914); Dallas Packing Co. v. Kimberling, 289 S.W. 149 (Tex.Civ.App.1926). See 38 C.J.S. Garnishment § 264(b)(2), at 524 n. 95 The judgment on appellant's appeal is affirmed, and the judgme......
  • Pan American National Bank v. Ridgway
    • United States
    • Texas Court of Appeals
    • 12 de janeiro de 1972
    ...1941, writ dism'd); May v. Donalson, 141 S.W.2d 702 (Tex.Civ.App.--San Antonio 1940, no writ); Dallas Packing Company v. Kimberling, 289 S.W. 149 (Tex.Civ.App.--Austin 1926, writ ref'd); Reed v. First State Bank, 211 S.W. 333 (Tex.Civ.App.--Dallas 1919, no writ); 27 Tex.Jur.2d, Garnishment,......
  • Singleton v. Frost
    • United States
    • Washington Supreme Court
    • 10 de setembro de 1987
    ...fee, its only discretion being as to amount. Carter v. First Nat'l Bank, 15 Ga.App. 55, 82 S.E. 628 (1914); Dallas Packing Co. v. Kimberling, 289 S.W. 149 (Tex.Civ.App.1926). See 38 C.J.S. Garnishment § 264(b)(2), at 524 n. 95 Similar language providing for an award of attorney's fees in RC......
  • Johnson v. McDonald
    • United States
    • Texas Court of Appeals
    • 7 de junho de 1934
    ...in the stock of the association and is in no position to complain of defects in the garnishment proceedings. Dallas Packing Co. v. Kimberling (Tex. Civ. App.) 289 S. W. 149; Roberts v. Stoneham (Tex. Civ. App.) 31 S.W.(2d) 856; Roos v. Lewyn, 5 Tex. Civ. App. 593, 23 S. W. 450, 24 S. W. 538......
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