Payne v. Finley
| Decision Date | 17 February 1927 |
| Docket Number | (No. 463.) |
| Citation | 291 S.W. 944 |
| Parties | PAYNE v. FINLEY. |
| Court | Texas Court of Appeals |
Appeal from Hill County Court; Olin Culberson, Judge.
Garnishment proceedings by T. H. Finley, judgment creditor of J. C. Harper and Dave Harper, against C. W. Harris, garnishee, in which J. F. Payne intervened. From a judgment sustaining a demurrer to his plea of intervention, intervener appeals. Reversed and remanded.
Morrow & Stollenwerck, of Hillsboro, for appellant.
T. H. Jackson, of Hillsboro, for appellee.
This appeal is prosecuted by J. F. Payne, appellant herein, from a judgment of the county court, sustaining a general demurrer presented by T. H. Finley, appellee herein, to a petition of intervention filed by him in a certain garnishment proceeding. Appellee on the 15th of February, 1926, filed in said court an affidavit alleging that he was a judgment creditor of J. C. Harper and Dave Harper in the sum of $372.05, and that C. W. Harris, garnishee herein, was indebted to said J. C. Harper. A writ of garnishment was duly issued and served on said Harris. He answered, admitting that he was indebted to said J. C. Harper in the sum of $192.08, being the balance due on a certain judgment recovered by said Harper against him in said court. Appellant on the 19th of March, 1926, intervened in said garnishment proceeding and alleged that said J. C. Harper and Dave Harper owned certain land and that they rented the same to said Harris for the year 1925; that on or about the 20th of January, 1925, said Harpers were indebted to him in the sum of $573.85, and that to secure said indebtedness they executed to him a chattel mortgage on all rents to be paid by said Harris for the use of said land for said year, and that they also assigned all such rents to him to secure such indebtedness; that said mortgage was duly recorded; that said Harris failed to pay said rents for said year, and that said J. C. Harper sued therefor and caused a distress warrant to be issued and the crops raised on said premises to be seized thereunder; that said Harris replevied said property, and that said Harper in said suit recovered a final judgment for such rents in the sum of $226.58 against said Harris and the sureties on his replevy bond. He claimed by virtue of said mortgage and assignment a prior right to the proceeds of said recovery as against any and all rights acquired by appellee by reason of the service of said writ of garnishment.
The case came on for hearing upon appellee's affidavit for garnishment, the answer of the garnishee and appellant's petition of intervention. Appellee demurred generally to appellant's said petition, and the court sustained said demurrer and dismissed said petition. The court then rendered judgment in favor of appellee against said garnishee for said sum of $192.08, and directed execution issued on the original judgment and the proceeds thereof when collected or paid by the garnishee deposited in the registry of the court pending the final adjudication of the controversy between appellant and appellee. Appellant presents said judgment to this court for review.
Opinion.The transcript in this case contains neither motion for new trial nor assignment of error. The action of the trial court, however, in sustaining a general demurrer and dismissing appellant's intervention, if erroneous, constituted fundamental error, and it is our duty to review the same, notwithstanding the absence of a formal assignment. The judgment recovered by J. C. Harper against the garnishee was for rents for the year 1925. While said judgment was in the name of Harper, appellant, by virtue of his assignment of the rents for which the same was recovered, was the equitable owner thereof, and as between him and Harper entitled to receive the proceeds when collected. Appellee claimed the right to subject the proceeds of said recovery to the payment of the judgment held by him against said Harpers by virtue of the rights acquired by him by the issuance and service of said writ of garnishment. Appellant claimed the right to resist such an appropriation by appellee and the right to appropriate the proceeds of said recovery to the satisfaction of the indebtedness owed by the Harpers to him, by virtue of his prior mortgage and assignment of the indebtedness upon which such recovery was based.
A creditor by service of a writ of garnishment acquires only such rights in or to the fund or property, if...
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