Davis v. McFall

• Decision Date: 04 April 1914
• Docket Number: (No. 7881.)
• Parties: DAVIS v. McFALL.
• Court: Texas Court of Appeals

168 S.W. 453

DAVIS v. McFALL.

(No. 7881.)

Court of Civil Appeals of Texas. Ft. Worth.

April 4, 1914.

Rehearing Denied May 2, 1914.

Appeal from District Court, Parker County; F. O. McKinzie, Judge.

Action by R. W. Davis against W. C. McFall, in which J. M. McFall intervened. From a judgment for the intervener, plaintiff appeals. Reversed and rendered.

Lanham & O'Neal, of Weatherford, and Stephens & Miller, of Ft. Worth, for appellant. C. C. Huff, of Dallas, Hood & Shadle, of Weatherford, and Penix & Eberhart, of Mineral Wells, for appellees.

CONNER, C. J.

The appellant, R. W. Davis, sued W. C. McFall in the district court upon a promissory note and other indebtedness aggregating at the time of the judgment $6,944, and at the same time caused the issuance of a writ of garnishment and its service upon the First National Bank of Mineral Wells. The writ was served at 5:30 p. m. on the 3d day of February. On or about the 20th day of February thereafter, W. C. McFall as principal and J. M. McFall and C. C. Huff as sureties filed in the district court an approved replevy bond, as provided in article 279 of the Revised Statutes, upon which the Mineral Wells bank paid to W. C. McFall the sum of $3,000 that had theretofore been deposited by him in that bank under circumstances hereinafter stated. Upon the call of the case in the district court, the appellant secured a judgment against W. C. McFall for said indebtedness without contest; the only contest being in the garnishment proceeding.

In the matter of the garnishment, the Mineral Wells bank answered to the effect that on January 23d prior to the service of the writ upon it W. C. McFall had made a deposit in that bank in the usual course of business on open account of $3,000; that this deposit was subject to check and made generally and not as a special deposit for any particular purpose; that thereafter on the 3d day of February, 1913, J. M. McFall notified the bank over the telephone that he held a check from W. C. McFall for $3,000 drawn against the bank, but that the check was not accepted by the bank; that later on the same day the writ of garnishment had been served upon it, and on the following day the said J. M. McFall presented what he claimed to be a check from W. C. McFall on the bank for $3,000 and demanded payment; but that on account of the service of the garnishment writ the bank had refused to pay the same; that thereafter on the 20th day of February, 1913, the defendant W. C. McFall had replevied said debt, and the same was paid to him by said bank by virtue of his replevy bond on which J. M. McFall was a surety, and the bank prayed to have the court determine its liability and to protect it from paying its said debt twice.

The record fails to show that W. C. McFall answered or entered an appearance in any way. J. M. McFall, however, filed a petition for intervention in which he alleged:

That the $3,000 placed in the Mineral Wells bank by defendant W. C. McFall had been so placed as a trust fund "for the purpose of turning same over to this intervener for the purpose of putting through a deal between this defendant and the defendant W. C. McFall." That "under the agreement between he and his father, W. C. McFall, he was to assume and did assume all indebtedness against said property of his father, and in addition thereto was to procure, and he did procure, on his own responsibility and on his own paper the sum of $7,500 to assist said W. C. McFall financially in clearing up the title to certain lands sold by his said father, W. C. McFall, and to clear up and pay off certain debts of his father, W. C. McFall, and in consideration and return for which, and as a part of said contract and agreement, the said W. C. McFall, joined by his wife, made, executed, and delivered to the said J. M. McFall deeds to certain lands in Palo Pinto, Tarrant, and Erath counties, Tex., on a certain vendor's lien note for $3,400, and did make and execute to him a check of date February 1, 1913, before the service of said writ of garnishment, payable to his order on the First National Bank of Mineral Wells for this $3,000 sought to reached by this writ of garnishment." And that due notice thereof had been given to the bank before the service of the writ.

Appellant answered the plea of intervention by special exception and answer raising the issue of estoppel to be hereinafter noticed, by general denial, and specially to the effect that the deposit made by W. C. McFall in the garnishee bank had been made in due course of business and not as a special deposit, and that thereby merely the relation of debtor and creditor had been created between the bank and W. C. McFall; that the bank had not accepted the order contained in the check prior to the service of the writ of garnishment; and further that at the time of the issuance of the check the defendant W. C. McFall was insolvent and that the check had been issued for the purpose of placing the proceeds thereof beyond the reach of plaintiff as one of his creditors and for the purpose of hindering and delaying the plaintiff in a collection of his debt, and was therefore void as against the plaintiff.

A trial before a jury upon the issues presented in the garnishment proceeding resulted in a verdict and judgment for the intervener, J. M. McFall, which also discharged the garnishee.

While it seems to be substantially undisputed in the evidence that W. C. McFall was insolvent at the time he issued the check in controversy and made the other conveyances specified in the petition of the intervener, the jury, as must be implied from the verdict under the charge of the court, upheld the good faith of these transactions, and thus lends support to the...