North British & Mercantile Ins. Co. v. Klaras

• Decision Date: 26 May 1920
• Docket Number: (No. 169-3179.)
• Citation: 222 S.W. 208
• Parties: NORTH BRITISH & MERCANTILE INS. CO. OF LONDON & EDINBURG v. KLARAS.
• Court: Texas Supreme Court

222 S.W. 208

NORTH BRITISH & MERCANTILE INS. CO. OF LONDON & EDINBURG v. KLARAS.

(No. 169-3179.)

Commission of Appeals of Texas, Section A.

May 26, 1920.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by the Texas Exchange National Bank of Waco against B. Klaras, wherein the North British & Mercantile Insurance Company of London and Edinburg was garnisheed, and prayed that an action by B. Klaras against it be enjoined. From a judgment

of the court of Civil Appeals (200 S. W. 584) affirming in part and reversing in part a judgment for plaintiff and an order that the injunction issue as prayed, the plaintiff brings error. Judgment so reformed as to affirm the judgment of the trial court.

Locke & Locke, of Dallas, for plaintiff in error.

W. L. Eason, of Waco, for defendant in error.

TAYLOR, J.

This is a garnishment case. The North British & Mercantile Insurance Company of London and Edinburg issued a $400 fire insurance policy covering a house in Waco, Tex. The property and policy were subsequently transferred to B. Klaras. Shortly thereafter the house was destroyed by fire. A few days later, to wit, June 25, 1915, the Texas Exchange National Bank of Waco instituted suit in one of the district courts in Waco against Klaras and others on notes and for a foreclosure of lien. The amount involved was in excess of $1,000. The bank, at the time of filing the main suit, filed in connection therewith a garnishment suit, causing the writ to be served on the insurance company with the view to ascertaining whether the company was indebted to Klaras. On August 7, 1915, the insurance company answered in the garnishment suit, but did not implead Klaras. On August 25th Klaras instituted suit in the county court at Waco, seeking a recovery on his policy. The company then filed an amended answer in the garnishment case, admitting its indebtedness for the full amount of the policy, alleging the institution by Klaras of the suit in the county court, and on the basis of the foregoing, and other allegations, impleaded Klaras, asking that he be compelled to assert his rights in relation to the policy in the garnishment suit, and that he be restrained from further prosecuting his suit in the county court. The company also filed an answer in the county court, in which it set forth the facts concerning the garnishment suit and of having admitted therein the indebtedness on the policy. The company also averred in its answer that an injunction was sought in connection with the garnishment, and prayed that the county court suit be abated, or stayed pending the proceeding in the garnishment suit.

On the call of the appearance docket in the county court judgment was entered in favor of Klaras for the amount sued for. On the following day a temporary restraining writ was issued by the district court in the garnishment suit, enjoining Klaras from proceeding further with the county court suit. Klaras was duly served with the writ.

The bank thereafter recovered judgment in the main suit against Klaras and the other defendants for $1,134.75, exclusive of interest and costs. After entry of judgment in the main case, the garnishment case was tried; all parties, including Klaras, being before the court.

The trial court found as a conclusion of law in the garnishment suit that the garnishee, in order to protect itself from the vexation and expense of double litigation and the possibility of double recovery, was entitled to make Klaras a party to the garnishment suit; that the indebtedness owing by the insurance company to Klaras was duly garnished by the bank; and that the bank was entitled to the benefit of the indebtedness. The insurance company paid into the registry of the court the sum of $400, and it was decreed that this sum, less an attorney's fee of $25, be paid to the bank on its judgment against Klaras, and that such payment should be in full satisfaction of the indebtedness of the company to Klaras on the policy. The temporary restraining order was made permanent, and subsequently the clerk paid out, pursuant to the decree, the sum deposited in the registry of the court.

The insurance company appealed by writ of error to the Court of Civil Appeals from the judgment in the garnishment suit. The judgment was affirmed in part, but so much of the decree appealed from as enjoined Klaras from the enforcement of his county court judgment was set aside, and that part of the case was dismissed. 200 S. W. 584.

Defendant in error has filed a motion to dismiss the petition for the writ, urging that, while the injunction suit was tried in and the restraining order perpetuated by the district court, the county court would have had jurisdiction to try a separate suit filed in that court to restrain enforcement of its judgment.

The reasons for overruling the motion will be apparent in the opinion.

The Court of Civil Appeals was of opinion that the district court was without jurisdiction to perpetually enjoin the enforcement of the judgment of the county court in view of the following provision of article 4653, R. S. 1911:

"Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered."

The court cite in support of the holding, among other cases, Baker v. Crosbyton Ry. Co., 107 Tex. 566, 182 S. W. 287, and say in connection therewith:

"We do not think the case at bar falls within any of the exceptions which have been, or should be, made to the statute. It is not claimed that the judgment of the county court is void for want of jurisdiction, or for any other reason; nor is it claimed that an execution issued upon that judgment had been levied upon property exempt from forced sale, as was the case in Leachman v. Capps & Canty, 89 Tex. 690, 36 S. W. 250, and Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578."

Was the district court without authority to perpetuate the temporary restraining order in view...