Pinkston v. Farmers State Bank of Center

• Decision Date: 18 March 1947
• Docket Number: No. 4301.,4301.
• Citation: 201 S.W.2d 595
• Parties: PINKSTON et al. v. FARMERS STATE BANK OF CENTER.
• Court: Texas Court of Appeals

Page 595

201 S.W.2d 595

PINKSTON et al. v. FARMERS STATE BANK OF CENTER.

No. 4301.

Court of Civil Appeals of Texas. Beaumont.

March 18, 1947.

Rehearing Denied April 30, 1947.

Appeal from District Court, Shelby County; S. H. Sanders, Judge.

Suit by Farmers State Bank of Center against Jack Pinkston, doing business as Transportation Insurance Agency, W. E. Richburg and another for an injunction restraining enforcement of a levy of execution on a judgment against present plaintiff in a justice court under a writ of garnishment. An order was entered overruling pleas of privileges filed by the defendants Pinkston and Richburg and a final judgment was entered in favor of plaintiff on the merits, and the defendants Pinkston and Richburg bring error and attempt to perfect an appeal.

Affirmed in part, and reversed and remanded in part with instructions.

Jack Pinkston, of Dallas, and Lipscomb & Lipscomb, of Beaumont, for appellants.

Howard S. Motley, of Center, for appellee.

WALKER, Justice.

This cause is pending on appellants' original motion for rehearing, assigning error to a judgment of this court which affirmed a judgment of the district court of Shelby county. The opinion previously filed is withdrawn and this opinion is substituted.

Farmers State Bank of Center, a banking corporation domiciled in Shelby county, brought this suit in the district court of Shelby county against three defendants (of whom the two first hereinafter named resided in Dallas county) to wit, Jack Pinkston ("D/B/A Transportation Insurance Agency"), W. E. Richburg, a justice of the peace in and for precinct 7, place 1, Dallas county, and Dick Middleton, the sheriff of Shelby county. Plaintiff alleged (directly or by inference) that a judgment for a sum not stated had been rendered against plaintiff in said justice court (by a predecessor in office of defendant Richburg) in favor of defendant Pinkston under a writ of garnishment directed to the plaintiff which was issued out of said court at Pinkston's application, and that the present Justice, Richburg, had issued a writ of execution under this judgment at the instance of Pinkston which had come into the hands of the sheriff and which the sheriff had levied upon "the property and assets" of plaintiff Bank. Plaintiff alleged further that the sheriff was threatening to sell this property, and would do so unless restrained, and as grounds for restraining a sale alleged that the execution was absolutely void because it was made returnable to an unlawful date and that the judgment was also void because rendered by default before plaintiff was required by law to answer. Plaintiff alleged further that the levy of the execution had damaged plaintiff in the sum of $2,500, but this purported cause of action was abandoned on trial. Other matters are referred to in the petition but need not be described. Plaintiff prayed for a temporary injunction restraining any further proceedings under the execution or the justice's judgment, and that the injunction be perpetuated; that the justice's judgment be declared void; that plaintiff recover the damages aforesaid, and that plaintiff have general relief.

Plaintiff filed this suit on December 21, 1944, and on December 29, 1944, after a hearing, of which defendants had notice, the trial court granted plaintiff's prayer for a temporary injunction, restraining further proceedings under the judgment and execution. Defendants did not appear at this hearing, took no appeal, and make no point here respecting this proceeding.

On the same day, to wit, December 29, 1944, defendants Pinkston and Richburg caused to be filed a joint plea of privilege to be sued in the county of their residence, namely Dallas county, and subject to this plea they filed various other pleadings which need not be described because none of them were ever presented to the trial court. The sheriff of Shelby county apparently never filed an answer.

Plaintiff controverted the plea of privilege on December 30, 1944, and the issue made thereby between plaintiff and defendant Pinkston was eventually tried in the district court of Shelby county on March 9, 1945, and by an order of that date that court overruled Pinkston's plea of privilege. It appears from the trial court's findings and conclusions that the plea of privilege of defendant Richburg was also heard and overruled at the same time but the only order in the transcript which might be regarded as covering defendant Richburg's plea is the final judgment on the merits, and we conclude that none other was entered.

The trial court proceeded to judgment on the merits on the same day, to wit, March 9, 1945, and rendered a final judgment against all defendants perpetuating the temporary injunction and awarding plaintiff costs. No other relief was granted. Although the order overruling Pinkston's plea and the final judgment are separate orders, it is apparent that only one hearing was had in the trial court and that both the order overruling the plea and the final judgment are based upon this hearing. Error has not been assigned to this procedure. The trial court's findings, and various recitations in the order and in the final judgment show that defendants were notified of this combined hearing on the plea and trial of the merits.

The plea of privilege and the merits of the cause were tried before the court without a jury. Defendants Pinkston and Richburg, although notified, did not appear at the hearing (or trial) of March 9th and are before us on writ of error. They also attempted to perfect an appeal. The sheriff of Shelby county has not appealed.

At the request of "defendants," the trial court filed findings of fact and conclusions of law from which we make the statement below. There is also a statement of facts before us. No exception was taken to the findings and no request was made for additional findings.

On June 30, 1944, defendant Pinkston procured a writ of garnishment to be issued out of the justice court in cause No. 9485 in that court, directed to the plaintiff bank and requiring answers to be made concerning one Charles B. Robinson. (This writ is in the statement of facts; it there identifies the obligation supporting it as a judgment of the justice court for $198.44 in favor of defendant Pinkston against Charles B. Robinson). This writ commanded plaintiff to appear and answer thereunder on or before 10 o'clock a. m. on July 15, 1944; but it was not served upon plaintiff until July 5, 1944, so that 10 full days did not intervene between the day of service and the day of return.

Plaintiff prepared an answer to this writ, "denying liability of any kind to the said Charles B. Robinson, and denying knowledge of any person who was indebted to him in any manner," and on July 13, 1944, deposited it in the United States mail (presumably at Center) for transmittal to the justice at Dallas; but the document did not come into the hands of the justice until July 17. In the meantime, on July 15, 1944, the justice rendered judgment in favor of defendant Pinkston against plaintiff for $198.44 and costs.

The trial court made the following finding respecting the merits of Pinkston's claim against plaintiff: "I find that the Farmers State Bank, Center, Texas, was not indebted to the said Charles B. Robinson in any sum, or sums, of money, nor did the said bank have any effects belonging to the said Charles B. Robinson, nor did the said Bank have any knowledge of any person who was indebted to the said Charles B. Robinson, or have any effects of any kind belonging to the said Charles B. Robinson." What date this finding related to is not clearly shown.

Nothing appears in the findings of fact (or in the statement of facts) respecting the conduct of the various parties after the rendition of the justice's judgment on July 15, 1944, down to October 16, 1944, but on that date defendant Pinkston "placed in the hands" of defendant Middleton, sheriff of Shelby county, a writ of execution which had been issued by the justice under the aforesaid judgment, "commanding the collection of the said $198.44 and costs" from plaintiff and which was made returnable "to the first day of the next term of court to be holden in my office in Dallas on the 21st of October, 1944." The trial court found further that this return was "a date not authorized by law and at a time not permitted by law."

(The amount of these costs and the other details of the execution were not related in the findings of fact. The justice's judgment was not introduced in evidence. However, the writ of execution is in the statement of facts. There we see it to be dated October 12, 1944, nine days prior to the return date, and that it shows these costs to be $4.95, making the total to be collected under the writ the sum of $204.39, the principal amount of the judgment being $198.44.)

The sheriff levied this writ "upon the property" of plaintiff, and advertised this property for sale on December 5, 1944. (The property is not identified and the details of the levy are not related in the findings. However, the sheriff's return is in the statement of facts. As copied there it recites that the writ came into the officer's hands on October 16, 1944, and that it was levied on October 28, 1944, upon a tract of land in the town of Center and upon certain improvements, including the two-story brick building, situated on this tract. The fact is immaterial, but we note that a witness identified these premises as plaintiff's banking house.)

Plaintiff resisted this writ by an injunction issued out of the trial court in another suit filed in that court, to wit, No. 12973, styled Farmers State Bank of Center v. Dick Middleton, et al., which was filed before the present suit (No. 12984) was filed.

The findings exhibit only three items of information respecting No. 12973: (1) That on October 28, 1944 (which according to the sheriff's return, was the date of the levy) the trial court granted plai...