Red Henry Painting Co. v. Bank of North Texas
| Decision Date | 31 March 1975 |
| Docket Number | No. 943,943 |
| Citation | 521 S.W.2d 339 |
| Parties | RED HENRY PAINTING COMPANY, Appellant, v. BANK OF NORTH TEXAS et al., Appellees. |
| Court | Texas Court of Appeals |
Paul Hill, Hill & Zarsky, Corpus Christi, for appellant.
Robert W. Dupuy, Wood, Boykin & Wolter, T. R. Bandy, Jr., Asst. Co . Atty., Corpus Christi, for appellees.
This is a garnishment case. Red Henry Painting Company, on May 11, 1973, instituted garnishment proceedings against Oscar Soliz, District Clerk of Nueces County, Texas, as garnishee, seeking funds held by him. The Bank of North Texas intervened and set up a claim to the funds in the possession of the garnishee. Thereafter, Red Henry Painting Company filed a motion for summary judgment, which was controverted by the Bank of North Texas. The trial court granted the motion and rendered judgment for Red Henry Painting Company. The Bank appealed. This Court reversed the judgment and remanded the cause for trial. See Bank of North Texas v. Red Henry Painting Company, 509 S.W.2d 44 (Tex.Civ.App.--Corpus Christi 1974, no writ).
After the remand, a trial on the merits was had before the court without the aid of a jury. Judgment was rendered on September 23, 1974 which quashed the writ of garnishment previously issued. Red Henry Painting Company, hereinafter referred to as 'appellant', has duly perfected an appeal from that judgment. The Bank of North Texas, appellee in this appeal, will be referred to as 'The Bank' and Oscar Soliz will be referred to as 'garnishee'.
Appellant, in its application for a writ of garnishment, alleged that it, as intervenor, had theretofore, in Cause 111,185--E on the docket of the District Court of Nueces County, Texas, styled 'J. B. Price and Sam Higbee, d/b/a Price Construction Company, et al, v. Housing Authority of the City of Corpus Christi and Fort Worth Lloyds', obtained a judgment against J. B. Price and Sam Higbee, d/b/a Price Construction Company, jointly and severally, for the sum of $5,469.32, plus 6% Interest thereon from date of judgment, attorney's fees in the amount of $1,825.00, and court costs; that such judgment was final, valid and unpaid; and that the garnishee was indebted to Price and Higbee 'by reason of the fact that on April 10th, 1973, a judgment was entered in favor of the judgment-defendants (Price and Higbee) against Housing Authority of the City of Corpus Christi and Forth Worth Lloyds in the 148th District Court of Nueces County, Texas, in Cause No. 111,185--E awarding to said judgment-defendants and the Bank of North Texas, Hurst, Texas, the sum of $126,350.41, which judgment is now final'.
The garnishee, in his answer, admitted that the sum of $126,350.41 had been paid into the registry of the court, and alleged that under the terms of the judgment which was rendered on April 10, 1973 in Cause No. 111,185--E, he was required: to pay out of such funds a total of $62,989.81, plus interest from date of judgment, to certain named parties; to withhold $16,850.00 pending final judgment in two causes which were still on the docket of the court; to withhold a total of $9,713.63, plus interest, 'subject to levy of garnishment' (by persons other than appellant); and to pay the balance of such funds 'to J. B. Price and Sam Higbee, doing business as Price Construction Company, and Bank of North Texas'. Appellant did not controvert the answer filed by the garnishee.
The only evidence offered by appellant consisted of certified copies of: 1) appellant's petition in intervention which it filed in Cause No. 111,185--E on April 12, 1972, wherein it was alleged that the co-partnership of 'J. B. Price and Sam Higbee d/b/a Price Construction Company', was indebted to it in the amount of $5,469.32 for 'paint and labor' furnished for certain numbered buildings at specified times; 2) the judgment which was rendered in Cause No. 111,185--E on May 16, 1972, whereby appellant recovered $5,469.32 on its claim against Price and Higbee, with interest thereon from date of judgment, court costs, and $1,825.00 for attorney's fee; 3) appellant's application for the writ of garnishment; 4) the answer of garnishee; 5) the judgment which was rendered on April 10, 1973 in Cause No. 111,185--E; and 6) the second amended original petition filed in Cause No. 111,185--E by J. B. Price and Sam Higbee, d/b/a Price Construction Company, and the Bank of North Texas plaintiffs, against Housing Authority of the City of Corpus Christi and Fort Worth Lloyds, defendants.
After appellant had rested, the Bank, by written motion filed on September 24, 1974, moved that the writ of garnishment be quashed 'for the reason that the garnishor failed to meet its burden of establishing prima facie that the monies in the hands of Oscar Soliz, garnishee, are subject to garnishment'. That motion was granted by the trial court.
The trial court filed detailed findings of fact and conclusions of law. The finding that the judgment which was rendered on April 10, 1973 shows a joint recovery by Price and Higbee And the Bank of North Texas, and the finding that the funds in the hands of the garnishee are funds that are Jointly payable to Price and Higbee And the Bank are attacked in this appeal. Complaint is also made of the conclusion that the funds in the hands of the garnishee were owed jointly to Price and Higbee And the Bank of North Texas.
Appellant, in its several points of error, contends that the funds held by the garnishee are subject to garnishment by it, because: 1) the undisputed evidence shows that the funds recovered by Price and Higbee against Housing Authority of the City of Corpus Christi and Fort Worth Lloyds (under the April 10, 1973 judgment) were recovered by Price and Higbee as 'Trustee under a construction contract, for the benefit of Red Henry, a materialman'; and 2) such funds are 'Trust Funds being held by garnishee as trustee for the benefit of garnishor as a materialman and laborer'.
The judgment rendered in appellant's favor against Price and Higbee on May 16, 1972 was a judgment against Price and Higbee Only. The judgment which was rendered on April 10, 1973 recited that Price had Higbee And the Bank of North Texas...
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