King Son Wong v. Smith

• Decision Date: 14 April 1976
• Docket Number: No. 1378,1378
• Parties: KING SON WONG et ux., Relators, v. Honorable Jack SMITH et al., Respondents. (14th Dist.)
• Court: Texas Court of Appeals

Page 468

537 S.W.2d 468

KING SON WONG et ux., Relators, v. Honorable Jack SMITH et al., Respondents.

No. 1378.

Court of Civil Appeals of Texas, Houston (14th Dist.).

April 14, 1976.

Opinion on Resubmission May 19, 1976.

Jack Edward Love, Houston, for relator.

John P. Forney, Jr., Eastham, Watson, Dale & Forney, O.W. Bussey, Jr., Thomas P. Sartwelle, Russell H. McMains, Fulbright & Jaworski, Houston, for respondent.

CURTISS BROWN, Chief Justice.

This is an original proceeding in which the relators seek writs of mandamus and prohibition.

We feel that a detailed examination of the facts which led to this original proceeding is essential. In 1971 King Son Wong and Bobbie Joan Wong (relators) were injured in a collision with a truck owned by the Carnation Company (the Company) and driven by Ben Johnson. The Wongs subsequently filed suit in the district court of Harris County against Johnson and the Company. About the time the suit was filed, the Wongs discharged their former attorneys, Wilbert K. (Bert) Gripp and Marvin S. (Buddy) King, and retained Homer T. Bouldin to represent them. Gripp and King later intervened in the suit, seeking attorney's fees. About the time the trial began, the intervenors' cause of action was severed by agreement from the cause in chief. The Wongs' case was tried in 1973, and the jury answered the vital liability issues in their favor. However, based on the jury's answers to certain defensive special issues, the court entered judgment for the Wongs for an amount less than their damages found by the jury. On appeal to this court, we reversed the judgment of the trial court and rendered judgment for the Wongs for the full amount of their damages. See Wong v. Carnation Co., 509 S.W.2d 385 (Tex.Civ.App.--Houston [14th Dist.]), writ ref'd n.r.e., 516 S.W.2d 116 (Tex.Sup.1974). An application for writ of error was refused by the supreme court in accordance with a per curiam opinion, and we issued a mandate to the trial court.

Shortly after the mandate was received, Johnson and the Company filed in the trial court a "Motion for Instructions on Payment of the Judgment," asking to whom the judgment should be paid. Although at the hearing on the motion the court apparently instructed Johnson and the Company to pay the judgment in strict accordance with its terms, no written order was entered at that time. A short time later the Wongs' attorney, Bouldin, died. The Wongs subsequently retained their present attorney, Jack Edward Love.

At this point Johnson and the Company filed a bill of interpleader in the Harris County district court and tendered to the District Clerk the full amount of the Wongs' judgment against them plus interest to that date. Named as defendants were the Wongs, the Wongs' attorney, Love, the Wongs' former attorneys Gripp and King, the attorney representing Gripp and King in the severed case, William O. Bussey, Jr., and the independent executrix of the estate of the Wongs' former attorney Bouldin, Mrs. Virginia Bouldin. Ultimately Love, Bussey, and Bouldin disclaimed in that suit, leaving as defendants only the Wongs and the former intervenors, Gripp and King.

Shortly after the filing of the interpleader suit, the Wongs' attorney moved the court in the original case to enter a written order in response to the "Motion for Instructions on Payment of the Judgment" and at the same time requested the District Clerk to prepare and issue a writ of execution on the judgment. Execution did issue, and the Sheriff of Harris County levied on lands belonging to the Company.

The interpleader suit was subsequently assigned to the same court in which the original case had been tried: the 189th District Court, Honorable Jack Smith presiding. Judge Smith, acting in the original case, signed an order instructing Johnson and the Company

"to pay the entire amount of the judgment rendered herein by the 14th Court of Civil Appeals and approved finally by the Supreme Court of Texas to the persons, and only to the persons, designated therein; to wit: KING SON WONG and BOBBIE JOAN WONG...."

However, having learned that the Wongs were proceeding with execution on the judgment, Judge Smith appended to the order the following words:

"and it appearing to the court that after the above hearing but prior to entry of this judgment such funds have been paid into the registry of the court no execution shall issue."

After this order was signed, the Company received notice of an upcoming Sheriff's sale of their property, which sale was pursuant to the previously issued writ of execution. Johnson and the Company thereupon filed, under the docket numbers of both the original suit and the interpleader suit, a motion to quash the Sheriff's sale. Judge Smith granted this motion, quashing the Sheriff's sale, the levy, and the writ of execution, and ordered that "all proceedings to levy execution on any judgment in Cause No. 850,969 [the original suit] shall be and are hereby terminated and quashed...."

Johnson and the Company thereafter moved for discharge from the interpleader suit and for the recovery of costs, expenses, and attorney's fees. Judge Smith denied the recovery of costs, expenses, and attorney's fees, but did order that Johnson and the Company be discharged from the suit.

It is in this posture that the Wongs, as relators, filed this original proceeding asking this court to issue these writs prohibiting Judge Smith and all of the remaining parties from taking any further action designed to frustrate relators' attempts to obtain execution of their judgment in the original suit. It is our opinion that such writs are called for in this case.

The rule in Texas is that

"a bill of interpleader comes too late when application therefor is delayed until after judgment has been rendered in favor of one of the claimants of the fund, and this is especially true where the holder of the fund had notice of the conflicting claims prior to the rendition of such judgment and an opportunity to implead the adverse claimants in the suit in which such judgment was rendered."

United Producers' Pipe Line Co. v. Britton, 264 S.W. 576, 578 (Tex.Civ.App.--El Paso 1924, writ ref'd).

Accord, Farmers State Bank of Meridian v. National Fire Ins. Co., 169 S.W.2d 545 (Tex.Civ.App.--Waco 1943, no writ); Nash v. McCallum, 74 S.W.2d 1046 (Tex.Civ.App.--El Paso 1934, no writ). See also Annot., 108 A.L.R. 267, 275-76 (1937); 48 C.J.S. Interpleader Sec. 23 at 70 (1947).

We feel that the above rule controls the instant case. Johnson and the Company waited to file their interpleader until after the judgment against them had become final, thus rendering them independently liable to relators. Not only did Johnson and the Company know of other possible claims against relators without joining the potential claimants as parties to the original suit, they agreed to sever the intervention action of two of the claimants from the main case. In such a situation it is manifest that the equitable remedy of interpleader should not be available.

Our judgment in the original suit recited the following:

"It is ordered, adjudged and decreed by the Court that plaintiff, King Son Wong, do have and recover of...