Hamblen v. Tuck

• Decision Date: 23 March 1898
• Citation: 45 S.W. 175
• Parties: HAMBLEN et al. v. TUCK et al.
• Court: Texas Court of Appeals

45 S.W. 175

HAMBLEN et al. v. TUCK et al.

Court of Civil Appeals of Texas.

March 23, 1898.

Appeal from Grayson county court; J. H. Wood, Judge.

Action by Hamblen & Son against S. H. Weaver and others and H. N. Tuck, garnishee. From the judgment rendered, plaintiffs appeal. Affirmed.

Brown & Crenshaw, for appellants. Bowen & Creager, for appellees.

JAMES, C. J.

Appellants, creditors of S. H. Weaver, garnished Tuck, who was trustee in a deed of trust executed by Weaver and wife in favor of certain of his creditors. Tuck, the garnishee, took the precaution to bring in the named creditors, and also Weaver. In the justice's court there was judgment against the garnishee in favor of Hamblen & Son, and all the preferred creditors who had accepted before the garnishment was served, for the sum of $89.89 for Hamblen & Son, and for the said accepting creditors for the amounts respectively due them; and the judgment provided that if, after paying the above sums, then Thomas H. Rockwood should be paid the sum due him, $66.30, etc. Rockwood took an appeal to the county court. The questions presented here are the refusal of the county judge to dismiss the appeal for alleged defects in the appeal bond, and his action quashing the garnishment. There were three objections to the appeal bond, which we dispose of in the order presented:

1. That the bond was not made payable to two of the preferred creditors, Chris Ruter and the Sherman Bottling Works. It appears from the record before us that Ruter was a nonresident, and never served, and was therefore not a party. It appears that the Sherman Bottling Works had not accepted under the deed of trust, and for this reason had no interest in the fund about which the controversy was, and therefore they could not be said to be parties adversely interested to the appellant.

2. The bond varies from the condition prescribed by the statute, in this: it obligates the appellant to pay off such judgment as may be rendered against him on the appeal, instead of using the words "pay off and satisfy." It is not perceived how he could pay off the judgment rendered on appeal in this character of case, without satisfying it. Clifford v. Clark, 3 Willson, Civ. Cas. Ct. App. § 238.

3. That the bond was not for double the amount of the aggregate of the various sums adjudged against the garnishee. We agree with what was held in Williams v. Vaughan (Tex. Civ. App.) 43 S. W. 850, and are of opinion that it was not necessary to measure...