Johnson v. McDonald

Decision Date07 June 1934
Docket NumberNo. 2980.,2980.
Citation73 S.W.2d 128
PartiesJOHNSON et al. v. McDONALD et al.
CourtTexas Court of Appeals

Appeal from District Court, Pecos County; J. G. Montague, Judge.

Action by J. A. McDonald against S. C. Johnson, in which plaintiff recovered a judgment and applied for three separate writs of garnishment against the Stockton Building Association, E. H. Warnock, and Jack W. Hawkins. McDonald filed a petition praying that Johnson be restrained from disposing of any property of the Stockton Building Association, and that a receiver be appointed to take possession of such property, and receiver was appointed. E. H. Warnock intervened in the suit, and he and Johnson moved to vacate the receivership. From an adverse judgment, S. C. Johnson and E. H. Warnock appeal.

Reversed and remanded, with instructions.

R. D. Blaydes, of Fort Stockton, and Mead & Metcalfe, of Marfa, for appellants.

W. B. Silliman, of Fort Stockton, and James Cornell, D. B. Hardeman, and R. G. Hughes, all of San Angelo, for appellees.

PELPHREY, Chief Justice.

J. A. McDonald, the owner and holder of a judgment for the sum of $17,569.45, recovered in cause No. 252, in the district court of Pecos county, against S. C. Johnson, applied for three separate writs of garnishment (after judgment) against the Stockton Building Association, E. H. Warnock, and Jack W. Hawkins. D. J. Sibley, on behalf of the Stockton Building Association, answered, in substance, that Johnson was the owner of 84 shares of stock in said corporation and alleged that Johnson, Warnock, and Hawkins had entered into a scheme by which the Stockton Building Association would be controlled by them and permitted to be sold out under a judgment which Hawkins held against said association. Warnock and Hawkins both denied owing Johnson anything or having in their possession any property belonging to him. These answers were controverted by McDonald, who charged that the judgment against the Stockton Building Association claimed by Hawkins and the 84 shares of stock in the association claimed by Warnock really were the property of Johnson. McDonald adopted the answer of the association and filed his petition in cause No. 252 praying that Johnson be restrained from disposing of any of the property of the association and that a receiver be appointed to take possession of such property.

A receiver was by the court appointed who took charge of the property.

Warnock was granted permission to intervene in the suit, and he and Johnson both moved the court to vacate the receivership.

Sibley, as a minority stockholder, prayed that the receivership be continued and, upon hearing, the trial court continued the receivership in force. In response to special issues, a jury found that the shares of stock and the judgment were the property of Johnson at the time the writs were served, and upon these findings a judgment was rendered ordering the sale of said shares and judgment to satisfy the deficiency judgment of McDonald.

From such judgment Johnson and Warnock have appealed.

Opinion.

Appellants first complain of the fact that the court tried out the issues of Hawkins' ownership of the judgment in question after he had answered and his answer had been controverted.

We agree with appellants that under the provisions of article 4096, Revised Statutes, the court was without jurisdiction over the person of Hawkins, who lived in Reeves county, to try out the issues as to him, but we cannot agree that the court had lost jurisdiction of the subject-matter. Being a question of jurisdiction of the person, Hawkins is the only person who can here raise the question, and he has not appealed.

In the affidavit for garnishment against the Stockton Building Association as well as in the writ itself the association in some places was described as the Fort Stockton Building Association.

The affidavit and writ were excepted to by both appellants as being invalid because of such misdescription.

Johnson in his pleading disclaimed any interest in the stock of the association and is in no position to complain of defects in the garnishment proceedings. Dallas Packing Co. v. Kimberling (Tex. Civ. App.) 289 S. W. 149; Roberts v. Stoneham (Tex. Civ. App.) 31 S.W.(2d) 856; Roos v. Lewyn, 5 Tex. Civ. App. 593, 23 S. W. 450, 24 S. W. 538; Slade v. LePage, 8 Tex. Civ. App. 403, 27 S. W. 952.

Warnock's interest in the fund being wholly independent of the validity of the garnishment, it is not such as gives him a right to question the proceedings. Roberts v. Stoneham, supra.

We are further of the opinion that the misdescription is not of such a nature as to invalidate the garnishment. The purpose of article 4078, R. S., in requiring the application for the writ to state the name and residence of the garnishee, is to furnish the necessary data for the issuance of the writ, and the officer in serving it. Aly v. Texas Publication House (Tex. Civ. App.) 5 S.W.(2d) 235.

In the affidavit here in question, the garnishee was correctly named in some places and, evidently through inadvertence, was incorrectly named in others. D. J. Sibley was named as president of the company upon whom service might be had and the record shows he was served and that the Stockton Building Association duly answered.

In this state of the record it is clear, we think, that the misdescription was immaterial.

The Stockton Building Association in its answer to the writ of garnishment set out that a judgment was rendered against it in favor of Jack W. Hawkins in the sum of $7.545, with interest, etc., which judgment was based upon a note executed by the association to Mrs. W. B. Silliman, thereafter assigned by her to S. C. Johnson, and later assigned by Johnson to Hawkins; that Hawkins, while the nominal plaintiff in the suit, did not own any beneficial interest in either the note or judgment, but that he was holding same for Johnson; that Johnson was acting in collusion with Hawkins at the time the suit was filed by Hawkins in pursuance of a conspiracy entered into by Johnson and Hawkins, having for its object the procuring of a judicial sale of the Rooney Hotel in Fort Stockton, Tex., same being the property of the Stockton Building Association; that after the procuring of judgment, Johnson and Hawkins had an execution issued, and placed in the hands of an officer and levied upon the Rooney Hotel and had said officer advertise the same to be sold in satisfaction of said judgment on March 7, 1933, having an agreement and understanding between themselves that such property when offered for sale would be bid in by S. C. Johnson or by some one for his benefit; that Hawkins had agreed that the amount of the bid might be credited on his judgment and that the officer conducting the sale would be requested to make a deed to S. C. Johnson, or the one by him named to bid the property in for him; that Johnson was fully aware of the prior incumbrances against the property, of the condition of the property, and that because of the financial depression it was unlikely that any one else could or would bid for the property at the sale; that Johnson, being the beneficial owner of the note upon which judgment was rendered and of the judgment in favor of Hawkins, thus...

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4 cases
  • United States v. Luquire Funeral Chapel
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 31, 1952
    ...Closely analogous are cases of mistakes in the names of persons to whom writs of garnishment are addressed; e. g. Johnson v. McDonald, Tex.Civ.App., 73 S.W. 2d 128; Arkansas Rice Growers' Co-operative Ass'n v. Minneapolis-Moline Power Implement Co., 188 Ark. 187, 65 S.W. 2d 913; Aly v. Texa......
  • First Nat. Bank in Dallas v. Steves Sash & Door Co.
    • United States
    • Texas Court of Appeals
    • May 19, 1971
    ...S.W.2d 151 ((Tex.Civ.App.) El P 1948); Clay Bldg. Material Co. v. First Nat. Bank, 161 S.W.2d 799 ((Tex.Civ.App.) East 1941); Johnson v. McDonald, 73 S.W.2d 128 ((Tex.Civ.App.) El P 1934 ED).'3 (a) In Pinkston v. Victoria Bank & Trust Co., 215 S.W.2d 245, 247 (Tex.Civ.App.--Waco 1948, Mand.......
  • Goodson v. Carr
    • United States
    • Texas Court of Appeals
    • May 15, 1968
    ...Toubin, 326 S.W.2d 586 (Tex.Civ.App.), no writ; Karchmer v. Sanger Bros., Inc., 217 S.W.2d 151 (Tex.Civ.App.), no writ; Johnson v. McDonald, 73 S.W.2d 128 (Tex .Civ.App.), writ dism'd; Lowe and Archer, Texas Practice, Remedies, Sec. 164, p. 143. And see Rule 674, The rule above is said to b......
  • Clay Bldg. Material Co. v. First Nat. Bank
    • United States
    • Texas Court of Appeals
    • April 11, 1941
    ...& Cas. Ins. Co. v. Lawson, Tex. Civ.App., 196 S.W. 346; Reed v. First State Bank of Purdon, Tex.Civ.App., 211 S.W. 333; Johnson v. McDonald, Tex.Civ. App., 73 S.W.2d 128; Subscribers to Fidelity Lloyds of America v. Lyday, Tex. Civ.App., 5 S.W.2d The order was not appealable. The only prope......

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