Hendrick v. Johnston, 3472.
| Decision Date | 29 October 1930 |
| Docket Number | No. 3472.,3472. |
| Citation | 32 S.W.2d 883 |
| Parties | HENDRICK et al. v. JOHNSTON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
Garnishment proceeding by F. S. Johnston and others against W. L. Hendrick and others, defendants, and M. System Stores, Incorporated, garnishee. From an adverse judgment, the defendants appeal.
Affirmed.
Carl Rountree, of Lamesa, and Bean & Klett, of Lubbock, for appellants.
Vickers & Campbell and Wilson, Randal & Kilpatrick, all of Lubbock, for appellees.
A judgment was obtained in the district court of Lubbock county by Miss Johnston, one of the appellees, against appellant W. L. Hendrick, on January 15, 1929, for the sum of $4,125, and on August 13, 1929, she filed a suit and garnishment after judgment, making the appellee M System Stores, Inc., garnishee therein. On August 20, 1929, the M System Stores, Inc., filed its answer in garnishment. Miss Johnston was a resident of the county of Lubbock, and the M System Stores, the garnishee, had its office for the transaction of its business in the town and county of Lubbock.
The garnishee's answer alleged the facts of a transaction between itself and M. P. Hendrick in which it was alleged that garnishee and M. P. Hendrick, on May 29, 1929, entered into a written contract whereby garnishee contracted to purchase from M. P. Hendrick a stock of furniture, fixtures, and grocery merchandise located in the M System store on the north side of the courthouse square in the town of Lamesa, in Dawson county, Tex.; that the garnishee contracted to pay for said property the sum of $5,250 cash for the fixtures and the invoice price of the merchandise; that said contract was signed, "M. P. Hendrick by W. L. Hendrick"; that all negotiations with reference to this contract were had by garnishee with W. L. Hendrick; that the garnishee had no knowledge or information regarding the ownership of the store other than disclosed by the contract, that the contract was partially carried out, the merchandise was invoiced and the property was delivered to garnishee; that the said M. P. Hendrick, acting by and through W. L. Hendrick and the said W. L. Hendrick individually, furnished to the garnishee a verified statement of the purported creditors of said business; that the indebtedness of the plaintiff in this suit was not listed in said affidavit, and that, in compliance with said contract, the garnishee deposited the sum of $1,000 in the First National Bank at Lamesa, Tex.; that it paid to said W. L. Hendrick the sum of $3,000 long prior to the date on which this writ of garnishment was served upon it; that the merchandise invoiced at $5,232.23, leaving a balance of $6,482.23 yet to be paid by the garnishee for the said store, for which sum the garnishee is indebted to whomsoever is entitled to recover same; that, shortly after said written contract was entered into between the garnishee and the said M. P. Hendrick, and before the property was invoiced and the contract was ready for consummation, the plaintiff in this suit informed the garnishee that the said property had been the property of W. L. Hendrick, and that the proceeds of the sale of same were his property, and that he was indebted to her in the sum of $4,000, and that she expected to try to collect her money out of this sale; that thereafter the attorneys for said plaintiff informed the garnishee of similar facts and intimated that a garnishment would be sued out against this garnishee; that, when all of the negotiations and adjustments regarding the sale of said store were practically completed, the garnishee gave the plaintiff, on August 13, 1929, written notice that ten days after said date it would pay to said M. P. Hendrick the balance of the purchase price of the store; that this notice was given to the plaintiff in an effort on the part of the garnishee to comply with the Bulk Sales Law of Texas (Rev. St. 1925, art. 4001) and because the plaintiff and her attorneys were contending that the property and the proceeds of its sale were, in fact, the property of the defendant W. L. Hendrick.
Garnishee in its answer further alleged that M. P. Hendrick and J. M. Marks have filed suit in the district court of Dawson county, Tex., against garnishee, the First National Bank of Lamesa, Tex., and W. L. Hendrick, defendants, in which it is alleged that the M System Store at Lamesa, Tex., purchased by the garnishee, was the property of M. P. Hendrick and J. M. Marks, and that the garnishee is indebted to them for the sum of $7,603.35, under the contract hereinbefore described, and for the sum of $1,000 as liquidated damages, and that the defendant W. L. Hendrick is indebted to them for the sum of $950, which he appropriated to his own use out of the sum of $3,000 paid by the garnishee on said contract; that at the time of said suit the garnishee had never before heard of said J. M. Marks; that subject to the facts hereinbefore stated, and except as stated, the garnishee is not indebted to W. L. Hendrick in any sum and was not when the writ of garnishment was served upon it, and that it has no effects of the said W. L. Hendrick in its possession and had not when the writ was served upon it, and that it has no knowledge of any other persons who are indebted to said W. L. Hendrick or who have effects belonging to him in their possession.
Further garnishee alleges that the suit filed in the district court of Dawson county, Tex., against this garnishee and others, as hereinbefore set out, No. 1468 on the docket of said court, was filed August 15, 1929, after the writ of garnishment herein was issued and served upon garnishee; that the said M. P. Hendrick, J. M. Marks, and W. L. Hendrick, are residents of Dawson county, Tex.; that the First National Bank of Lamesa is a national banking corporation, duly organized and existing under the laws of the United States of America, with its office and place of business in Lamesa, Tex.; that the said parties are in possession of all the facts relating to the true ownership of said property and the proceeds of its sale, and the garnishee has no information of such facts, as hereinbefore set out, and the said parties should be brought into this suit and made parties thereto in order that the true facts may be shown and the rights of all parties adjudicated.
Further garnishee prays for attorney fees and that M. P. Hendrick, J. M. Marks, and W. L. Hendrick and the First National Bank of Lamesa be made parties to this suit, and that they be cited as required by law to answer herein, and that on final hearing the court make such orders as are necessary to protect its interest, and that it have judgment for its costs, including the sum of $500 attorney fees, and for all other and further legal and equitable relief to which it may be entitled.
The defendants W. L. Hendrick and J. M. Marks filed their pleas of privilege to be sued in Dawson county, and also filed their plea in abatement alleging the prior filing of their suit in Dawson county, and praying that the garnishment suit and the cross-action of garnishee M System Stores, Inc., be dismissed or stayed and abated until the Dawson county suit is finally disposed of, and that they have judgment in their behalf for all costs of court and for other and further relief in law and equity.
The evidence discloses that the garnishment suit filed by Miss Johnston and the service of the writ upon the M Store was had prior to the filing of the suit by W. L. Hendrick and J. M. Marks in Dawson county, but that the M System's answer in garnishment was not filed in the Lubbock district court until after the filing of the suit in Dawson county. For that reason defendants W. L. Hendrick and J. M. Marks contend that the suit in Dawson county, having been filed prior to the answer and cross-action in the Lubbock court, the district court of Dawson county had acquired jurisdiction of the matters and things at issue, and that the district court of Lubbock county was in error in holding to the contrary.
It will be observed from the above statement that the district court of Lubbock county had jurisdiction of the cause...
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