Neely v. Grayson County Nat. Bank

• Decision Date: 02 March 1901
• Citation: 61 S.W. 559
• Parties: NEELY et al. v. GRAYSON COUNTY NAT. BANK.
• Court: Texas Court of Appeals

61 S.W. 559

NEELY et al. v. GRAYSON COUNTY NAT. BANK.

Court of Civil Appeals of Texas.

March 2, 1901.

Appeal from Grayson county court; J. D. Woods, Judge.

Action by J. H. Neely against Frank Schwulst, defendant, and the Grayson County National Bank, garnishee. Defendant was adjudged a bankrupt after commencement of the action. From a judgment in favor of garnishee, plaintiff and defendant's trustee in bankruptcy appeal. Affirmed.

Chas. Crenshaw, for appellants. A. L. Beaty, for appellee.

BOOKHOUT, J.

Appellant J. H. Neely recovered a judgment in the county court of Grayson county on September 12, 1899, against Frank Schwulst for the sum of $317.02, with interest and costs. Execution was regularly issued upon the judgment, and on the 11th day of August, 1900, J. H. Neely filed her affidavit for garnishment, and caused a writ of garnishment to issue against the Grayson County National Bank, a corporation, which writ was served on the 11th day of August, 1900. The bank answered, denying any indebtedness to Frank Schwulst. This answer was controverted by J. H. Neely on the 4th day of September, 1900. On the 25th of August, 1900, Frank Schwulst filed his petition in bankruptcy in the United States court for the Eastern district of Texas, and on the 27th of August was adjudged a bankrupt. H. N. Tuck was appointed trustee of the estate of said bankrupt, and thereafter, on the 24th of September, said trustee was granted permission by the county court to intervene in this suit, on which day he filed his plea of intervention. On the 25th day of September, 1900, the garnishee filed its amended answer in this suit, admitting, among other things, that Meddle Schwulst, wife of the said Frank Schwulst, bankrupt, had deposited in its bank on the day of the service of the said writ upon it the sum of $245. It alleged that said bankrupt was indebted to the said bank by two promissory notes, — one for the sum of $300, dated July 30, 1900, and due 90 days after date; that the other note was for the sum of $125, dated August 15, 1900, and due September 1, 1900; that both notes were secured by personal security; that the first note, for $300, was signed by bankrupt, his wife, Meddie Schwulst, and A. A. Fielder, and the second note, for the sum of $125, was signed by the bankrupt, his wife, Meddie Schwulst, and Frank Hamblin; that on the 10th day of August, 1900, Meddie Schwulst had drawn a check in favor of L. Eppstein & Son, of Denison, for the sum of $113.36; that because of the indebtedness of the said bankrupt to it in the sum of $425, and on account of the check which had been drawn upon it and presented to it after the writ of garnishment had been served upon it, it had the legal right to retain all the money deposited with it in the name of Meddie Schwulst, and apply first to the payment of the said check, and then the balance to its own debt, pro tanto. And upon these issues this case went to trial, and was submitted to the court without the intervention of a jury, and resulted in judgment for the defendant garnishee, and that garnishee recover costs, including an attorney's fee for $20. The trustee, Tuck, and plaintiff have appealed.

The court filed conclusions of fact as follows: "At the time of the service of the writ of garnishment herein there stood on the books of the Grayson County National Bank of Sherman, garnishee herein, a credit in the name of Meddie Schwulst in the sum of $245, which represented a deposit of money made on that day; the same being an ordinary deposit, and not a special one. On August 10, 1900, which was prior to the service of said writ, said Meddie Schwulst, in payment of a debt of said Frank Schwulst, drew her check in favor of said L. Eppstein & Son, on said fund in said bank, for $113.36, and delivered the same to said L. Eppstein & Son, which said check was on August 15, 1900, which was after the service of said writ, presented to said bank, paid by it, and charged to said account of said Meddie Schwulst against the credit aforesaid. At the time of the service of said writ, Frank Schwulst, the defendant, who was and is the husband of said Meddie Schwulst, was indebted to the Grayson County National Bank, garnishee herein, in the amount of two promissory notes,—one for $300, dated July 9, 1900, and due ninety days after date, and one for $125, dated August 1, 1900, and due August 15, 1900; both bearing interest after maturity at the rate of ten per cent. per annum. The first note was also signed by Meddie Schwulst and A. A. Fielder, and the second by said Meddie Schwulst and Frank Hamblin. Both were joint and several in form, but said Fielder and Hamblin were sureties. Said Frank Schwulst is insolvent, and has been since prior to the time said writ was served; and on the 25th day of August, 1900, he, the said Frank Schwulst, filed his petition in bankruptcy, and was on the 27th day of August, 1900, duly adjudged, and is now, a bankrupt; and the intervener, H. N. Tuck, was duly appointed trustee of his estate, and qualified as required by law, and is now acting as such trustee, and is authorized to intervene herein. Shortly after the service of said writ, said bank, with the consent of said Frank Schwulst and Meddie Schwulst, applied the amount which is held to the credit of said Meddie Schwulst on the notes hereinbefore mentioned, and the money so applied was the money of said Frank Schwulst, although it had been deposited in the name of his wife. A reasonable fee for preparing and filing the garnishee's answer herein and for representing it on the trial is $20."

Appellant contends that the trial court erred in finding (1) that the money on deposit in the bank belonged to Frank Schwulst; (2) that Frank Schwulst was insolvent prior to the time the writ of garnishment was served; and (3) that the bank, with the consent of Frank and Meddie Schwulst, applied the amount which it held to the credit of Meddie Schwulst on the notes of Frank Schwulst. The evidence is amply sufficient to show that the money deposited in the name of Meddie Schwulst in the garnishee bank was the community property of Frank and Meddie Schwulst. We think the evidence also fairly supports the court's findings that Frank Schwulst was insolvent prior to the...