Micarley Mining Co. v. Carpenter
| Decision Date | 17 October 1929 |
| Docket Number | (No. 2356.) |
| Citation | 21 S.W.2d 711 |
| Parties | MICARLEY MINING CO. et al. v. CARPENTER et al. |
| Court | Texas Court of Appeals |
Appeal from County Court at Law, El Paso County; J. M. Deaver, Judge.
Action by Don A. Carpenter against the Micarley Mining Company, wherein the American Smelting & Refining Company was made garnishee, and wherein the Sour Lake State Bank intervened. From a judgment for plaintiff against the garnishee and against defendant, the intervener and defendant appeal. Affirmed.
Turney, Burges, Culwell & Pollard, of El Paso, for appellants.
R. F. Momsen, Knollenberg & Cameron, and Davis, Tittmann, Roche & Miranda, all of El Paso, for appellees.
Don A. Carpenter sued the Micarley Mining Company in the county court at law of El Paso county, Tex., and sued out a writ of garnishment against the American Smelting & Refining Company. The original action resulted in a judgment in favor of appellee for $299.74.
The American Smelting & Refining Company, as garnishee, answered, denying any indebtedness to the Micarley Mining Company, but answering specially alleged that, prior to the service of the writ on it, it had received certain shipments of ore and concentrates from the Micarley Company; that the proceeds of said shipments were being held by it; that, prior to the receipt by it of said shipments of ore, it had been instructed to pay the proceeds thereof, except the royalty, to the Sour Lake State Bank.
Appellee contested the answer of garnishee, claiming that the assignment to the Sour Lake State Bank was fraudulent and in violation of the statutes of the state of New Mexico. The Sour Lake State Bank intervened, claiming to be the owner of the proceeds of the ore shipments by virtue of an agreement with the Micarley Mining Company, and advancements made thereunder, and that such advancements were necessary to enable the mining company to continue operations.
The cause was tried before the court, and judgment was rendered in favor of appellee against the American Smelting & Refining Company for the amount of his judgment against the mining company and costs. The Sour Lake State Bank and the Micarley Mining Company have appealed.
Opinion.Appellants in their brief, present eight assignments of error and six propositions upon which they seek a reversal.
The propositions, in substance, are: (1) That the advances were made in good faith, and that the lien given on the ore is enforceable and prior to the rights of general creditors; (2) that the mining company, being a going concern and conducting its ordinary business, had a right to borrow money and pledge or convey the ore for the purpose of obtaining money to carry on its business; (3) the mining company being a going concern when the advances were received and the evidence not showing that the contract was made for the purpose of defrauding other creditors, the contract was valid; and (4) that the statutes of the state of New Mexico have no application.
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