Kingman-Texas Implement Co. v. Herring Nat. Bank

• Decision Date: 04 January 1913
• Citation: 153 S.W. 394
• Parties: KINGMAN-TEXAS IMPLEMENT CO. v. HERRING NAT. BANK.
• Court: Texas Court of Appeals

153 S.W. 394

KINGMAN-TEXAS IMPLEMENT CO. v. HERRING NAT. BANK.

Court of Civil Appeals of Texas. Amarillo.

January 4, 1913.

On Motion for Rehearing, February 1, 1913.

Appeal from District Court, Wilbarger County; S. P. Huff, Judge.

Action by the Kingman-Texas Implement Company against the Herring National Bank, as garnishee, and others. From a judgment against plaintiff as to the money sought to be garnisheed, it appeals. Affirmed.

M. W. Plowman, of Dallas, L. H. Mathis, of Wichita Falls, and Cecil Storey, of Vernon, for appellant. Harry Mason, L. P. Bonner, and J. Shirley Cook, all of Vernon, for appellees.

HATHAWAY, Special Judge.

On June 2, 1910, the appellant, Kingman-Texas Implement Company, recovered a judgment in one of the district courts of Dallas county against A. D. Davis and E. P. Hutchens, individually, and as a firm of Davis & Hutchens, for the sum of $4,399.32; and on August 4, 1910, appellant sued out a writ of garnishment against the Herring National Bank of Vernon, Wilbarger county, requiring it to answer as to its indebtedness, etc., to the defendant in the judgment, A. D. Davis. The garnishee bank answered on November 14, 1910, and the answer returned to the Dallas district court and filed on November 15th, in which it denied that it was indebted to A. D. Davis in any sum, and had no effects, etc., belonging to A. D. Davis; but the answer of the garnishee further showed that on June 27, 1910, A. D. Davis deposited in the bank the sum of $6,000 to the credit of E. S. Davis, who is shown by the evidence to be the wife of A. D. Davis. The answer further shows that, after the deposit was made, from time to time checks had been drawn against the deposit before the service of the writ, and the money paid out, reducing the account to the sum of $2,158.32, which last sum was still on deposit in the name of E. S. Davis. The Kingman-Texas Implement Company filed its contest to the answer of the garnishee, and asked that A. D. Davis and wife, E. S. Davis, be made parties to the contest. The contest proceedings were transferred to and filed in the district court of Wilbarger county on December 30, 1910. The contest alleges that the $6,000 was fraudulently placed in the bank by A. D. Davis in the name of his wife, E. S. Davis, for the purpose of concealing it from and defrauding his creditors, including plaintiff, and alleging that the money was the money of A. D. Davis and subject to the payment of his debts, as well as the debts of the firm of Davis & Hutchens, and that the claim of E. S. Davis, if any, is false and fraudulent.

At the September term of the Wilbarger district court, the Kingman-Texas Implement Company and A. D. Davis and E. S. Davis joined issues, Mrs. E. S. Davis specially alleging that the money shown by the answer of the garnishee ($2,158.32) to be in the bank was her separate money and her separate individual funds, owned by her in her own separate right and estate, separate and apart from her husband, A. D. Davis, and denied that it was liable for the payment of appellant's claim, and prayed that the money be required to be paid over to her. The cause was tried, without the intervention of a jury, at the February term of the court, 1911, and judgment rendered for Mrs. E. S. Davis and her husband, A. D. Davis, for the money in the hands of the garnishee bank, for the separate use and benefit of E. S. Davis.

Appellant's first assignment of error complains of the action of the trial court in refusing to grant it a continuance on its application made at the February term, 1912. The application is not based upon any statutory grounds for continuance, but is based upon the grounds that M. M. Plowman, leading counsel for appellant, and who resided in Dallas, Tex., was absent on account of serious illness, and could not be present at the trial at that time; that Plowman was the general attorney for appellant; and that he had investigated the law and facts, applicable to the case, to the extent of his ability, and fully expected to be present when the case should be called for trial. The application was made by L. H. Mathis, one of the attorneys of record, properly sworn to. Mathis alleges that his employment was to the effect that he should only act as assistant counsel in the actual trial of the case, and that Plowman should prepare the case for trial and act as leading counsel during the trial.

It appears from the application that George H. Plowman was originally leading counsel for appellant; that he died prior to the September term of the court, 1911; and that he was succeeded by M. M. Plowman as general and leading counsel; that the Hon. R. W. Hall, now of this court, was associated with said George H. Plowman as assistant counsel; and that, on being elected to this court, he was succeeded by L. H. Mathis as assistant counsel. L. H. Mathis further states, in his application for continuance, that because it was not expected of him, and because he has not undertaken, under his agreement with plaintiff or its general attorney, to prepare this case for trial by making a full investigation of the facts or the law, he is wholly unprepared to develop the facts or properly present the plaintiff's rights under the law in the trial of the case; and that a trial, in the absence of said Plowman, would result in a great hardship to plaintiff.

Rule 49 for the government of trials in the district courts of this state (142 S. W. xxi) provides: "Absence of counsel will be no good cause for continuance or postponement of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown, or upon matters within the knowledge or information of the judge, to be stated on the record"—and has continuously been the rule since the adoption of rules by our Supreme Court, December 1, 1877. 47 Tex. 626. The record shows that the case was continued at the February term of the court, 1911, by operation of law, and was continued at the instance of appellant at the September term, 1911, for the want of a witness; hence this was not the first application for a continuance.

We do not think the trial court abused his discretion in refusing to grant the continuance. Watkins v. Atwell, 45 S. W. 405. The record in this case shows that the pleadings of appellant, tendering issue filed on September 14, 1911, were signed by three counsel for appellant, viz., M. M. Plowman, Cecil Storey, and L. H. Mathis. Whether more than one Mr. Mathis was present at the trial, the record does not show; but the statement of facts does show that appellant was ably represented by counsel in the cross-examination of witnesses. The record further shows that the case was tried on the 17th day of February, 1912. On the 19th a formal motion for a new trial was filed; and on March 2d an amended motion for new trial was filed. While this amended motion complains of the refusal of the continuance, it does not set up any fact or reason why the refusal was error, further than the reasons set out in the application itself, although more than 12 days had elapsed since the trial for counsel to discover any injury that may have been done appellant by reason of the absence of its leading counsel. None is set up or shown in its motion for new trial. Hagerty v. Scott, 10 Tex. 529. We therefore overrule appellant's first assignment of error.

Appellant's second assignment of error complains of the action of the trial court, Hon. S. P. Huff, in holding that he was qualified to try the case. Appellant, by proper bill of exception, raises the question of disqualification of the learned judge, who tried the case, in that it is shown by the bill and by the facts that C. B. Johnson was at the time of the trial, and had been for some months prior thereto, a stockholder in and the cashier of the Herring National Bank, garnishee, and was at the time related to the judge trying the case by affinity within the prohibited degree. Our Constitution, art. 5, § 11, declares that: "No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, by affinity or consanguinity within such degree as may be prescribed by law." The Legislature has fixed the relationship within the third degree. If the bill of exceptions and facts show that the judge and C. B. Johnson were related to each other within the prohibited degree, then the question arises whether Johnson, the son-in-law of the judge, was a party to the suit within the meaning of the Constitution; if he was not, the judge was not disqualified. Our Supreme Court, in Winton v. Masterson, 87 Tex. 203, in answering a certified question from the Court of Civil Appeals for the First District, construes this provision of the Constitution; and Justice Gaines, in rendering the opinion, says: "The words `p...