Presnall v. Stockyards Nat. Bank
| Decision Date | 21 November 1912 |
| Citation | 151 S.W. 873 |
| Parties | PRESNALL et al. v. STOCKYARDS NAT. BANK. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County.
Garnishment proceedings by P. A. Presnall and others against the Stockyards National Bank, garnishee. Judgment for defendant, and plaintiffs appeal. Reversed.
The appellants, P. A. Presnall and S. B. Mossner, obtained a judgment in the district court of Nueces county against Hugh Rogers for the sum of $1,921.90 with 10 per cent. interest. An execution was issued on May 28, 1908, and returned nulla bona. Thereafter on January 16, 1909, the appellants applied for a writ of garnishment, which was issued and served on the Stockyards National Bank of Ft. Worth on January 20, 1909. The garnishee made answer on July 5, 1909, in which the garnishee denied any indebtedness to Hugh Rogers, but alleged that Hugh Rogers owed it two notes; one note being for $2,500, on which $900 had been paid, and which was secured by certificate of shares of stock of the Barse Commission Company of the value of $2,000, and the other note being for $2,000, on which had been paid $777, and which was secured by a transfer to the bank of Rogers' equity of redemption in certain live stock owned by Nails & Rogers on Royer Ranch in Murray county, Okl. Appellants filed a controverting affidavit charging that Rogers had on deposit in the bank at the time the writ of garnishment was served the sum of $777.89, and that the bank held as collateral security certificate of shares of stock in the Barse Commission Company owned by Rogers of the value of $2,000 and an assignment of Rogers' equity of redemption in a mortgage on 2,000 head of cattle and 130 head of horses; and alleging that Rogers, since the writ of garnishment was served, had fully paid off and discharged the garnishee's notes without the application of the collateral security to the payment of the debt, and that the garnishee had voluntarily released and surrendered and delivered to Rogers, after service of the writ, his certificate of shares of stock in the Barse Commission Company, and that the garnishee had permitted the cattle to be sold by Rogers; and praying that the garnishee be made liable to appellants for the cash deposit and the value of the certificate of shares of stock in the Barse Commission Company, or so much as was necessary to satisfy the appellants' debt. The garnishee in reply admitted that at the time the writ of garnishment was served Rogers had on deposit in the bank the sum of $777.89, but alleged that Rogers was indebted to the bank at the time of the service of the writ on a $2,000 note, and that he was a nonresident of the state and had no property in Texas except that deposited with the bank, and that, as a consequence, and after the writ was served, the sum of the deposit was by the garnishee applied on the note as a credit; and further that Rogers had refused to pay his indebtedness unless the garnishee would first surrender the certificate of shares of stock held as collateral, and that by agreement with Rogers to pay his debt to the bank it surrendered to him the certificate of shares of stock in the Barse Commission Company. The cause was tried to the court without a jury, and judgment was entered in favor of the garnishee and also allowing it to recover of appellants $250 as attorney's fees.
The testimony in the record admits that when the writ of garnishment was served Rogers had a general deposit in the Stockyards National Bank of $777.89. Rogers was indebted to the bank in the two notes mentioned in the pleading, neither of which had matured when the writ was served. One note was secured by an assignment of Rogers' equity of redemption in certain mortgaged live stock in the possession of Rogers in Oklahoma, and the other by a certificate for 20 shares of stock in the Barse Commission Company indorsed in blank. At the time the writ of garnishment was served, Rogers was a citizen of Oklahoma, and without property in Texas save that mentioned in the possession of the garnishee. The Barse Commission Company was a Missouri corporation, but had secured a permit under the laws of Texas to do business in Texas, and was at the time and has since been doing business in Texas. The certificate of shares of stock in the commission company held by the bank as collateral belonged to Rogers, and was, it was agreed, at the time of the delivery to the garnishee, and has been ever since, of the value of $2,000. Rogers was not due the bank anything except the notes. Immediately after the service of the writ the bank applied the $777.89, without Rogers' authority, as a payment on the $2,000 note. After service of the writ, and after maturity of both notes, Rogers paid to the bank the balances due on both of the notes, upon condition that the bank deliver to him the certificate of shares of stock of the Barse Commission Company held by it; and the bank agreed to, and did, release and deliver the certificate of shares of stock, together with the canceled notes to Rogers. At the time the bank took the assignment of the equity of Rogers in the live stock in Oklahoma, the live stock was heavily mortgaged in Oklahoma. Rogers himself sold the live stock, and after paying the mortgage there was left from the proceeds of the sale of the same the sum of $501.75. This sum of $501.75 was the value of his assigned equity, and was applied by Rogers on the note held by the Stockyards National Bank.
Slay, Simon & Wynn, of Ft. Worth, for appellants. Wm. J. Berne, of Ft. Worth, for appellee.
LEVY, J. (after stating the facts as above).
By proper assignments of error the appellants contend that the court erred in rendering judgment for the garnishee, for the garnishee admitted that it held money and effects of the defendant Rogers at the time the writ was served, and by the undisputed evidence not showing any legal or equitable defense which entitled it as against the appellants to hold such money and effects. The several matters of contest were a general deposit in the bank of $777.89, an assignment of an equity of redemption in mortgaged cattle, and a certificate for 20 shares of stock in the Barse Commission Company, a private corporation. It is an admitted fact that, when the writ of garnishment was served Hugh Rogers, the defendant in the original judgment theretofore obtained by plaintiffs had standing to his credit in the garnishee bank on general deposit the sum of $777.89. As against the right of the appellants to...
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