Mitchell, Gartner & Thompson v. Young

• Decision Date: 15 December 1939
• Docket Number: No. 14000.,14000.
• Citation: 135 S.W.2d 308
• Parties: MITCHELL, GARTNER & THOMPSON v. YOUNG et al.
• Court: Texas Court of Appeals

135 S.W.2d 308

MITCHELL, GARTNER & THOMPSON v. YOUNG et al.

No. 14000.

Court of Civil Appeals of Texas. Fort Worth.

December 15, 1939.

Rehearing Denied January 12, 1940.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Garnishment suit by Mitchell, Gartner & Thompson, a partnership, against the Employers' Liability Assurance Corporation, Limited, at the instance of which W. F. Young was interpleaded. From a judgment discharging garnishee and awarding interpleaded claimant title to the fund involved, garnishors appeal.

Affirmed.

Chester B. Collins, of Fort Worth, for appellants.

A. M. Clyde and W. F. Young, both of Fort Worth, for appellee Young.

Walker, Smith & Shannon, of Fort Worth, for Employers Liability Assur. Corporation, garnishee.

BROWN, Justice.

A partnership firm, composed of J. W. Mitchell and others, known as Mitchell, Gartner & Walton, secured a judgment, in one of the district courts of Tarrant County, against a partnership firm known as D. H. Purvis & Son, and the former partnership firm was thereafter changed to that of Mitchell, Gartner & Thompson; said last named partnership firm having succeeded to all of the rights of the old firm.

The firm of D. H. Purvis & Son brought suit in one of the district courts of Tarrant County, in the year 1935, against A. Anderson and A. Anderson, Jr., and Employers' Liability Assurance Corporation, Ltd., to recover a sum of money alleged to be owing in the amount of $10,429.99, and W. F. Young, an attorney at law of Forth Worth, Texas, filed such suit for the plaintiffs.

This suit was contested as to liability and as to the amount recoverable, but on or about July 27, 1938, an agreement was entered into, whereby the defendant, Employers' Liability Assurance Corporation, Ltd., agreed to settle the suit for $4,500.

On the day such settlement agreement was entered into, the firm of Mitchell, Gartner & Thompson made affidavit for and secured the issuance of a writ of garnishment out of the court in which the judgment was obtained against the firm of D. H. Purvis & Son, and on such date of issuance had such writ served upon Employers' Liability Assurance Corporation, Ltd., as the garnishee.

The garnishee answered fully, disclosing that it did not owe D. H. Purvis & Son anything at the time the writ was served, but fully stating the fact of the agreement to settle the suit filed against it, and the subsequent consummation of such settlement agreed upon and that said garnishee became indebted under the settlement, before the answer was filed, in the sum of $4,500, but specifically answered that one W. F. Young was claiming the funds agreed to be paid by such settlement, by virtue of an assignment of all right thereto and interest therein, executed by D. H. Purvis & Son to said W. F. Young, and said garnishee, answering as such stakeholder, prayed that said W. F. Young be interpleaded in the garnishment suit, to the end that it might be established in court to whom the $4,500 belonged.

Young was so interpleaded and served with process and filed his pleading, showing an assignment by D. H. Purvis & Son to him of all right to and interest in the claim and cause of action brought by D. H. Purvis & Son against said Andersons and Employers' Liability Assurance Corporation, Ltd., long before any garnishment writ was applied for by Mitchell, Gartner & Thompson.

Before the case was tried, W. F. Young endeavored to get the garnishors to agree to have the garnishee pay the said $4,500 into the treasury of the court, and leave only the question of the ownership of the funds, as between garnishors and Young, to be decided. This garnishors declined to do, and D. H. Purvis & Son replevied the funds, and W. F. Young furnished D. H. Purvis & Son collateral sufficient to enable them to make the required replevin bond.

Issue was finally joined, the cause was tried to the court and judgment was rendered that the garnishors, Mitchell, Gartner & Thompson, take nothing, that the garnishee, Employers' Liability Assurance Corporation, Ltd., be discharged on its answer, and awarding title to the $4,500, attempted to be garnished, in the claimant, W. F. Young, and taxing all costs of the trial court against Young, except the jury fee paid by the garnishors, which fee was adjudged to have been paid too late.

Mitchell, Gartner & Thompson excepted and gave notice of appeal to this court, and the interpleaded claimant, Young, excepted to the judgment against him for costs and likewise gave notice of appeal.

Mitchell, Gartner & Thompson have appealed and made all parties, including Maryland Casualty Company, surety on the said replevin bond, parties adversely interested.

The issues sought to be made by the pleading of appellants will be disclosed in discussing the three assignments of error brought forward in the brief.

The first assignment of error, in substance, asserts that the trial court erred in not rendering judgment for appellants, because it was shown that appellee, W. F. Young, furnished his securities and assets to indemnify and induce Maryland Casualty Company to become the surety on the replevin bond, executed by D. H. Purvis & Son, which compelled the delivery of the $4,500 to D. H. Purvis & Son, as principal, when the surety in fact and in law was shown to be W. F. Young.

The second assignment of error asserts, in substance, that the court erred in not rendering judgment for appellants because it was shown that they had no notice of any claim, by Young, of the funds, when the garnishment writ was sued out and served, and because when the suit of D. H. Purvis & Son was filed against Abe Anderson & Son et al, Young's name was signed to their petition as one of the plaintiffs' attorneys, and subsequent to the filing of such suit, Young, as attorney for D. H. Purvis & Son, executed an affidavit to a plea on behalf of D. H. Purvis & Son, controverting a plea of privilege filed by the said defendants, in which Young "swore under oath" that D. H. Purvis & Son were the owners of such cause of action and claim, and thereby held them out to the world as such owners until the garnishment writ was sued out and served, and having failed to give any character of notice of his right and claim, under such circumstances, appellants "relied on the belief and appearance of all matters of record that D. H. Purvis & Son were the owners of said claim and having incurred court costs, legal fees and loss of time and inconvenience to garnishee, such fund would be entitled to recover their claim from said fund."

The third assignment of error alleges, in substance, practically the same facts as are set forth in the second assignment of error.

Without using the words "estoppel" or "estopped", it is evident that these three assignments of error are intended to raise an issue of estoppel, on the part of Young, to claim the monies paid in settlement of the suit by D. H. Purvis & Son against Abe Anderson et al, and the propositions urged so disclose.

The assignments of error are so closely related that one discussion is sufficient to cover all.

The assignment from Purvis & Son to Young, which antedates the issuance of the garnishment writ by almost three years, assigns "all of our right, title and interest in and to that certain claim or demand, right or action asserted by us in cause No. 12780-A, in the District Court, Tarrant County, Texas, styled D. H. Purvis & Son v. Abe Anderson & Son et al, and the said Young is hereby authorized to sign all receipts or acquittances for any and every character whatsoever necessary in the...