Fannin County Nat. Bank v. Gross

• Decision Date: 07 December 1917
• Docket Number: (No. 1856.)
• Citation: 200 S.W. 187
• Parties: FANNIN COUNTY NAT. BANK v. GROSS
• Court: Texas Court of Appeals

200 S.W. 187

FANNIN COUNTY NAT. BANK v. GROSS

(No. 1856.)

Court of Civil Appeals of Texas. Texarkana.

December 7, 1917.

Rehearing Denied January 3, 1918.

Appeal from Fannin County Court.

Action by J. W. Gross against T. P. Rodgers. Judgment for plaintiff, writ of garnishment issued, and the Fannin County National Bank intervened. Judgment for plaintiff against garnishees, and intervener appeals. Reversed and remanded.

The appellee recovered a judgment in the justice court against T. P. Rodgers for $96.28, with interest and costs, and he procured issuance of a writ of garnishment against Marshall & Lindsey, a copartnership. The garnishees answered that they were indebted to the defendant Rodgers in the sum of $133.15. The appellant bank intervened in the garnishment proceeding claiming all of the $133.15 in the hands of the garnishees as its own, alleging that such money was the proceeds of certain 10 hogs sold to garnishees by Rodgers as its agent, and that before the writ of garnishment was issued Rodgers had transferred and assigned such funds to the bank. A judgment was rendered in the justice court against the garnishees in favor of the plaintiff for $105.91, and the intervener appealed to the county court. In the county court a verdict was peremptorily instructed against the intervener and judgment was entered against garnishees in favor of plaintiff for $108.80 and costs of the garnishment. The intervener appeals from the judgment.

Cunningham & McMahon, of Bonham, for appellant. Rosser Thomas, C. A. Wheeler, and J. W. Gross, all of Bonham, for appellee.

LEVY, J. (after stating the facts as above).

The original judgment in the justice court in favor of the plaintiff against the defendant Rodgers was for "the sum of $96.28, with 10 per cent. interest per annum thereon from date hereof, together with the costs in this behalf expended, for all of which execution may issue." The garnishment judgment in the justice court in favor of the plaintiff against the garnishees was for "the sum of $105.90, being the amount of the judgment now due and owing in the case of the plaintiff against the defendant Rodgers," and the further sum of the costs of the garnishment. The garnishment judgment only was appealed from the justice court to the county court and from the county court to this court. And the question is, In determining the jurisdictional amount of appeal to this court, shall the appealable amount be determined by the amount of the garnishment judgment, or, as contended by appellees, only by the principal amount of $96.28 of the original judgment in the justice court in favor of the plaintiff against the defendant Rodgers?

It is quite true that a garnishment proceeding is incidental or ancillary to the main action against the defendant (article 271, R. S.; Simmang v. Railway Co., 102 Tex. 39, 112 S. W. 1044, 132 Am. St. Rep. 846; Holek & Co. v. Insurance Co., 63 Tex. 66; Townsend v. Fleming, 64 S. W. 1006), and that the garnishees' liability is dependent upon the judgment rendered against the defendant (Rowlett v. Lane, 43 Tex. 274; Ins. Co. v. Seeligson, 59 Tex. 3). This, though, does not cover nor affect the question of amount in controversy on the right to appeal. In a garnishment proceeding, as a remedy given by the statute to a creditor or judgment plaintiff against a third person, the nature of the plaintiff's demand against the garnishee is the entire judgment against the principal defendant. For the statute has provided (article 293, R. S.) that the judgment appropriate to the case and the complete measure of the garnishee's liability is, when he is so indebted, "the amount of the plaintiff's judgment against the defendant, with interest and costs." Thus, in effect, the original judgment recovered against the defendant in turn becomes the ground and right for judgment upon it against the garnishee. So a proceeding on the judgment in garnishment becomes in a sense a suit on a judgment debt, wherein the judgment creditor is plaintiff and the garnishee is defendant (article 274, R. S.), and wherein the liability of the garnishee may be litigated (article 299, R. S.), and judgment may be entered against the garnishee when he is indebted to the defendant. Even third persons may intervene and assert their rights. Ragsdale v. Groos, 51 S. W. 256; Turner v. Wade, 48 S. W. 542; Kelley Grain Co. v. English, 34 S. W. 651. And this judgment so entered in garnishment is so far final between the parties as to be of itself appealable. Freeman v. Miller, 51 Tex. 443; Armstrong v. Elbert, 14 Tex. Civ. App. 141, 36 S. W. 139. Thus, in effect, where the question involves the liability of the garnishee to the extent of a judgment, as here, recovered against the defendant, the entire judgment recovered in the justice court, according to its face and tenor, is, it appears, the amount in controversy as affecting appellate jurisdiction. It was so held in Hubbard v. Vacher, 26 S. W. 921. For the claim of the plaintiff to the money as against each the defendant and the intervener is to the full extent of the terms of the plaintiff's original judgment in the justice court. And here the entire original justice judgment made the ground for the garnishment judgment reads, "in the sum of $96.28 with 10 per cent. interest per annum thereon from date hereof, together with the costs in this behalf expended," which aggregates more than $100. As affecting the jurisdictional amount of appeal to this court, the "amount in controversy," it has been ruled, is the highest sum for which judgment may be rendered in favor of the plaintiff (Siensheimer v. Insurance Co., 157 S. W. 228), as sued for in the justice court (Railway Co. v. Cunnigan, 95 Tex. 439, 67 S. W. 888). And while the garnishment judgment embraces accrual interest on the original judgment from the date of its rendition and the costs of that suit, such accrual interest and costs are (in virtue of article 293, R. S.) a part of the demand of the plaintiff, like obtaining a new judgment on an unsatisfied original judgment. Green-Rea Co. v. Holman, 107 Tenn. 544, 64 S. W. 889; Siensheimer & Co. v. Insurance Co., supra. See Davis Bros. v. Railway Co., 73 Ark. 120, 83 S. W. 318, 3 Ann. Cas. 658. Article 1589, Vernon's Sayles' Statutes, providing that the amount in controversy shall be "exclusive of interest and costs," does not have application where the new judgment against the garnishee is based on the original judgment demand of the plaintiff when interest and costs, by the terms of such original judgment, are a part of the demand. It is believed that this court has jurisdiction of the garnishment appeal in this case.

On the merits of the case error is predicated upon the action of the court in peremptorily instructing a verdict against the intervener. Upon a consideration of the evidence, in the light of the intervener's pleading, it is believed that issues of fact arise that should have been passed to the jury for decision.

If, under the agreement in evidence between the bank and Rodgers, the bank owned or had a beneficial interest in the money before the garnishment, it may recover. Stillson v. Stevens, 23 S. W. 322; Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 828; Gardner v. Bank, 54 Tex. Civ. App. 572, 118 S. W. 1146. For a creditor stands in the same attitude in relation to a garnished fund that a judgment debtor stands, and can enforce only such rights as the debtor himself might enforce.

The judgment is reversed and the cause remanded.

HODGES, J., agrees to the result on the merits, but dissents on the conclusion as to the jurisdiction of this court on appeal.

HODGES, J. (dissenting in part).

I disagree with my Associates only upon the question of jurisdiction. The essential facts upon that issue are clearly stated by Justice LEVY in the opinion of the majority. Subdivision 3 of article 1589 of the Revised Civil Statutes limits the appellate jurisdiction of this court to cases of which the county court has appellate jurisdiction when the judgment or amount in controversy or the judgment rendered shall exceed $100, exclusive of interest and costs. Since a correct judgment cannot be for more than the amount in controversy, the use of the words "or judgment rendered" appears to be surplusage. It was held by our Supreme Court in G., C. & S. F. Ry. Co. v. Cunnigan, 95 Tex. 439, 67 S. W. 888, that the expression "judgment rendered" might be construed as referring to instances where a judgment was rendered for an amount in excess of that sued for. It was also there held that the language "amount in controversy" means the sum of money or value of the thing originally sued for. The amount originally sued for in the case of Gross v. Rodgers, out of which grew this garnishment proceeding, was $96.28, exclusive of interest and costs. By the time this writ of garnishment was applied for the costs and the accumulated interest exceeded the sum of $100, and the fund garnished equaled the entire amount then due on the judgment. The question here presented is, Which of these "amounts in controversy" furnishes the true test of jurisdiction on this appeal? Evidently the test must be the same as that by which we determine the jurisdiction of the trial court, for the language of both the Constitution and the statute clearly implies that the same standards shall be applied in both instances. In the case of Simmang v. Insurance Co., 102 Tex. 39, 112 S. W. 1044, 132 Am. St. Rep. 846, the Supreme Court reviewed upon writ of error...