Focke v. Blum

• Decision Date: 08 December 1891
• Citation: 17 S.W. 770
• Court: Texas Supreme Court
• Parties: FOCKE <I>et al.</I> v. BLUM <I>et al.</I>

Page 770

17 S.W. 770

FOCKE et al. v. BLUM et al.

Supreme Court of Texas.

December 8, 1891.

Commissioners' decision. Section A. Appeal from district court, Henderson county, F. A. WILLIAMS, Judge.

Action by Leon Blum and another against the firm of Focke, Wilkins & Lange and another for the conversion of goods on which plaintiffs had a lien by garnishment. Plaintiffs had judgment, and defendants appeal. Affirmed.

McLemore & Campbell, for appellants. Richardson & Watkins, for appellees.

MARR, J.

"Appellees, Leon and H. Blum, as plaintiffs below, brought suit against appellants on July 24, 1889, and in their amended original petition alleged that on November 27, 1888, Leon and H. Blum brought suit in Henderson county against the firm of Reynolds & Liston on two promissory notes, on which they subsequently recovered judgment for $1,920.63, and that at the institution of said suit they caused to be issued in said cause writ of garnishment against C. T. Scott, resident of Henderson county, and that said writ was duly served on said Scott on November 27, 1888. That at the time of service of said writ C. T. Scott had in his hands, belonging to Reynolds & Liston, property subject to garnishment, consisting of a certain stock of goods, wares, and merchandise of the value of $1,800. That all of said property was subject to the said garnishment then, and was situated in Henderson county. That on December 6, 1888, defendants Focke, Wilkins & Lange also sued Reynolds & Liston, and on same day sued out a writ of attachment against them, and levied same upon the stock of goods, wares, and merchandise in the hands of garnishee C. T. Scott, and wrongfully appropriated and converted same to their own use and benefit. That at the date of said seizure the goods were in Henderson county, Tex., and in the actual possession of garnishee C. T Scott; and that defendants were personally present and acting by their agent, Muller, who was then and there present, aiding, directing, and assisting in the seizure; and that defendants well knew that plaintiffs' garnishment had been served, and was valid and subsisting against said property at and before the time of the seizure. That Reynolds & Liston were wholly and notoriously insolvent. That garnishee Scott was in no way liable, except as named; and that they were by defendants' trespass wholly deprived of any means of collecting their debt, to plaintiffs' damage $2,500; and pray for damage, costs, and general relief. Defendants Focke, Wilkins & Lange filed — First, their plea of privilege to be sued in Galveston county; second, a general demurrer in the usual form; and, third, a general denial. August 31, 1889, C. T. Scott, by permission, intervened in said cause, and set up that on November 24, 1888, the firm of Reynolds & Liston, by a certain valid deed of assignment conveyed to him, for benefit of their creditors, goods, wares, and merchandise of the value of $3,000; that he accepted said trust, gave bond, and on said date took the said property in his actual possession; that on December 6, 1888, defendants Focke, Wilkins & Lange wrongfully seized and converted said stock of goods to their own use and benefit; that after his qualification as assignee, and prior to the seizure of goods by defendants, he had been duly served with a writ of garnishment issued out of the district court of Henderson county in favor of plaintiffs in the case of Leon and H. Blum v. Reynolds & Liston, and also set up an itemized list of the goods taken, and prayed for his damages, costs, and for general relief. To this defendants Focke, Wilkins & Lange pleaded their privilege to be sued in Galveston, a general demurrer, and general denial, and specially that the deed of assignment to Scott was void. Defendants' plea of privilege and general demurrer to plaintiffs' petition were by the court overruled. A trial by jury on February 6, 1891, resulted in a verdict in favor of Leon and H. Blum, plaintiffs, for $1,500, against defendants Focke, Wilkins & Lange, and that intervener Scott take nothing. Motion for new trial overruled, and notice of appeal given by both defendants and intervener, and each file assignments of error herein."

There is no controversy about the facts of the case as stated in the pleadings. We will first dispose of the plea of intervention interposed in the court below by the assignee, C. T. Scott, one of the appellants. The deed of assignment made to him was signed and sworn to alone by J. H. Reynolds, one of the members of the firm of Reynolds & Liston, composed of said Reynolds and R. J. Liston. The assignment was made for the benefit only of accepting creditors who should execute releases. It did not purport to convey anything other than the firm property or assets, (if all of these,) and the deed by its terms does not convey and could not have the effect of conveying to the assignee the individual property subject to execution of R. J. Liston. No judgment was rendered in favor of the plaintiffs in the district court against the intervener for any of the property. The assignment was void under the circumstances above enumerated, and the assignee acquired no rights to the possession of the property, etc., in virtue thereof. Still v. Focke, 66 Tex. 715, 2 S. W. Rep. 59; Baylor Co. v. Craig, 69 Tex. 330, 6 S. W. Rep. 305.

The first assignment of error made by the other appellants relates to the act of the court in overruling the exceptions and plea in abatement. It may be that this assignment is not insisted upon, as there is no proposition or statement under it. There was, however, no error committed in this respect. The actual levy of the attachment, (not by notice,) the seizure and conversion of the property thereunder, at the instance of Focke, Wilkins & Lange, constituted wrongful acts, intentionally committed, — a trespass, — and fixed the venue in the county where the suit was tried even under article 1198¹ of the Revised Statutes. Connor v. Saunders, (Tex. Sup.) 17 S. W. Rep. 236. Besides, jurisdiction is expressly conferred by the act of March 29, 1889, (Gen. Laws 21st Leg. p. 48;) and see Act 20th Leg. p. 49.

The following propositions, made by the appellants last named under the remaining assignment of error, present the controlling questions upon this appeal, viz.: "The proceedings in garnishment are purely statutory, and are intended alone for the purpose of enabling the plaintiff in garnishment to obtain judgment against the garnishee for the debt or property sought to be reached by the proceedings; and no lien is created on the property held by the garnishee, because `our statutes create no such lien;' hence, no cause of action arises in favor of the plaintiff in garnishment against a stranger who trespasses upon the property held by the garnishee in the suit, and the charge of the court in this case to the contrary hereof was error." These propositions are plausible, but, as we think, in conflict with the current of the authorities. We shall not attempt to review the authorities, nor even to refer to all of them. That would require too much space and more time than is at our command. Those that are accessible to us, we have, however, examined. In the present case, Scott, the garnishee, was not a debtor, merely owing a sum of money to Reynolds & Liston, but had in his possession "effects" subject to execution, and to the satisfaction of plaintiffs' claim, belonging to said debtor firm, at the time of the service of the writ of garnishment upon him. We think that it is important to bear this distinction in mind. The service or levy of the writ of garnishment, which has been declared by our supreme court to be "in such case virtually a process of attachment," had the effect of placing the property of the debtor in the hands of the garnishee at the time in custodia legis, and of creating at least a right ad rem or "quasi lien" upon the effects or property in favor of the plaintiffs in the writ to secure the payment of the debt sued upon, (and evidenced by a valid judgment,) superior to the rights of other creditors subsequently attaching the property. We have no doubt of the correctness of these conclusions, both upon principle and authority, and to economize space we prefer to state our views mainly in the form of propositions. Vide Harrell v. Cattle Co., 73 Tex. 612, 11 S. W. Rep. 863; Rev. St. arts. 191,² 206, 207; Baird v. Trice, 51 Tex. 558; Rev. St. art. 3140, subd. 12; Erskine v. Staley, 12 Leigh, 406; Goddard v. Bridgman, 25 Vt. 351; Brashear v. West, 7 Pet....