New York Life Ins. Co. v. Patterson & Wallace

• Decision Date: 13 April 1904
• Citation: 80 S.W. 1058
• Parties: NEW YORK LIFE INS. CO. v. PATTERSON & WALLACE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

80 S.W. 1058

NEW YORK LIFE INS. CO. v. PATTERSON & WALLACE et al.^*

Court of Civil Appeals of Texas.

April 13, 1904.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Action by the New York Life Insurance Company against C. T. Richardson and others, and the American National Bank, garnishee. C. B. Patterson and another intervened. From a judgment in favor of the interveners, against the garnishee and plaintiff, plaintiff appeals. Affirmed.

Crane, Greer & Wharton, for appellant. Burgess & Burgess, for appellees.

EIDSON, J.

Appellant sued C. T. Richardson and others in the district court of Dallas county, in cause No. 21,908, for the sum of $25,000, and on the 7th day of November, 1902, made application for a writ of garnishment in the usual form against the American National Bank of Dallas, alleging that Willis Meredith, one of the defendants in cause No. 21,908, who had been using a number of aliases, among others that of W. Mannering, or Ward Mannering, had funds deposited in the said American National Bank. The writ of garnishment was issued, and served on the bank the same day.

The American National Bank answered, in substance, that it had funds in hand, amounting to $283, which said Ward Mannering had placed in its vaults as a general deposit. It also alleged that Patterson & Wallace, a firm composed of C. B. Patterson and George E. Wallace, of the county of El Paso, state of Texas, claimed that the amount deposited by the said Ward Mannering, or some portion thereof, belonged to them. The bank then asked that Patterson & Wallace be made parties, and the question settled as to the ownership of the funds. Patterson & Wallace filed their plea of intervention on April 6, 1903, claiming $275 of said funds in said American National Bank, by reason of an alleged assignment thereof to them made by the said Ward Mannering on the 6th day of November, 1902. The only question in the case is as to whether the evidence supports the judgment of the court below.

The case was submitted to the court without a jury, and the following facts were agreed to and proven:

"(1) That the New York Life Insurance Company has a valid judgment against Ward Mannering for a sum largely in excess of the money admitted by the garnishee to be in its hands, to wit, for the sum of $25,000, and that the writ of garnishment served on the garnishee was issued out of the case in which said judgment was rendered.

"(2) That on November 6, 1902, Ward Mannering was under arrest in El Paso, Tex., charged with criminal offense against the laws of the state. That Patterson & Wallace were and are practicing attorneys at El Paso. Tex., and as such were on said date employed by the said Ward Mannering to defend him against said criminal charge.

"(3) That on said date the said Ward Mannering executed and delivered to the State National Bank of El Paso, Tex., the following draft:

"`$250.00 El Paso, Texas, Nov. 6th, 1902.

"`At Sight, pay to the order of the State National Bank of El Paso, Texas, two hundred and fifty dollars, value received, and charge to account of, with exchange.

                                        "Ward Mannering
                

"To American National Bank, Dallas, Texas.'

"That said draft was by said Ward Mannering delivered to his said attorneys, Patterson & Wallace, and was by said attorneys delivered to the State National Bank of El Paso.

"(4) That, after the execution and delivery of said draft, the State National Bank of El Paso sent the following telegram to the American National Bank at Dallas, Texas, to wit: `El Paso, Texas, November 6th, 1902. Am. Nat. Bank, Dallas, Texas: Will you pay draft on you by Ward Mannering for two hundred and fifty dollars? [signed] State Nat. Bank.'

"(5) That said telegram was received by the American National Bank at Dallas, Tex., at 12:52 p. m., November 6, 1902. And said American National Bank, at 1 p. m. on the same date, replied thereto by telegram, as follows: `Dallas, Texas, November 6th, 1902. State National Bank, El Paso, Texas. Ward Mannering's account is good now for two hundred and eighty three dollars. The Am. Nat. Bank.'

"That said last telegram was received by the State National Bank at El Paso, Tex., on the afternoon of the same day it was sent.

"(6) That, after the receipt of the said telegram by the State National Bank, the said Ward Mannering executed and delivered to the said State National Bank another draft for the sum of $25, and delivered the same to the said Patterson & Wallace as the first, and which said draft was by the said Patterson & Wallace delivered to the said bank, and is as follows:

"`$25.00 El Paso, Texas, Nov. 6th, 1902.

"`At Sight pay to the order of the State National Bank of El Paso, Texas, twenty-five ($25.00) dollars, value received, and charge to account of, with exchange.

                                        "Ward Mannering
                

"To American National Bank, Dallas, Texas.'

"(7) That on the said 6th day of November, 1902, and about one hour after the said American National Bank had sent to the State National Bank the telegram above quoted, the said American National Bank sent to the State National Bank a second telegram, stating, in substance, that it had learned that a writ of garnishment would probably be served upon it in behalf of the New York Life Insurance Company and against the said Ward Mannering.

"(8) That on the evening of the 6th day of November, 1902, the State National Bank of El Paso forwarded, by due course of mail, the two drafts above described to the American National Bank at Dallas for payment, and that the said drafts reached the American National Bank at Dallas on the morning of November 8, 1902.

"(9) That on the 7th day of November, 1902, the writ of garnishment under which the New York Life Insurance Company claims the money in this case was served upon the garnishee, the American National Bank, the said drafts being then in transit by the United States mail, at some point between El Paso, Tex., and Dallas, Tex. That on the morning of November 8, 1902, when said drafts reached the American National Bank at Dallas and were presented, payment thereof was refused by the said bank because the writ of garnishment issued in this cause had been served upon it the day before, and said drafts were duly protested for nonpayment and returned to the State National Bank at El Paso, Tex., the protest fees upon each draft amounting to $3.54, or a total of $7.08, which was paid by Patterson & Wallace. That after said protest, and after the return of said drafts to the State National Bank, it indorsed the same as follows: `Pay to the order of Patterson & Wallace, without recourse. State National Bank, by Cashier,' and thereafter delivered same to said Patterson & Wallace.

"(10) As to the question of the intention of the said Ward Mannering in the execution and delivery of said drafts to the State National Bank, and as to whether it was the intention of the said Ward Mannering to thereby assign said funds in the said American National Bank to said Patterson & Wallace, no agreement is reached herein, but depositions may be taken upon that point, subject to all objections by the New York Life Insurance Company, except such as may be specially waived upon the interrogatories in answer to which the depositions are to be taken, and, after that shall have been done, the following questions will be submitted for the decision of the court:

"Did the execution and delivery of the drafts aforesaid, under the circumstances above recited, and their being forwarded to Dallas, supplemented by the facts stated in the depositions, constitute an assignment of said funds in the American National Bank to the said Patterson & Wallace, and did it constitute an appropriation of the same to the payment of the said drafts; or did the New York Life Insurance Company, by service of the writ of garnishment upon the American National Bank, under the circumstances stated, give to it the superior right to the money then in the hands of the said bank, to be applied upon its judgment against the said Ward Mannering?

                   "April 13th, 1903
                 "The New York Life Insurance Company
                                              "Plaintiff
                  "By Crane, Greer & Wharton, Attorneys
                                 "Patterson & Wallace,
                     "By Burgess & Burgess, Attorneys.
                

"L. M. Turner, a witness for the interveners, Patterson & Wallace, testified that he was the receiving...