Reed v. First State Bank

Decision Date29 March 1919
Docket Number(No. 8098.)
Citation211 S.W. 333
PartiesREED v. FIRST STATE BANK OF PURDON et al.
CourtTexas Court of Appeals

Appeal from Navarro County Court; B. E. Traylor, Judge.

Action by C. E. Elmore against the First State Bank of Purdon and others. Judgment in favor of plaintiff against the Bank and in favor of the Bank against R. L. Reed, and Reed appeals. Affirmed.

Callicutt & Johnson, of Corsicana, for appellant.

Richard Mays and Laurence Treadwell, both of Corsicana, for appellee.

RAINEY, C. J.

Appellee, C. E. Elmore, as plaintiff below, filed this suit in the county court of Navarro county, Tex., on August 10, 1916, against the First State Bank of Purdon, R. L. Reed, B. W. Miles, and A. B. Reynolds. He recovered judgment against the first State Bank of Purdon for $310.50, and that R. L. Reed take nothing as to said sum of money. Miles and Reynolds were adjudged to go hence without day. The judgment referred to was rendered on October 31, 1917, and an amendatory judgment was entered on the 22d day of December, 1917.

Plaintiff alleged in substance:

"That he deposited in defendant bank, in the name of his mother, Annie Elmore, $310.50 in money, which belonged to and was owned by plaintiff, and which fact was known to the bank. That the bank thereby became indebted to plaintiff; that it became and was the duty of the bank to repay said money to plaintiff; that plaintiff and his mother, acting for plaintiff, had made demand upon the bank for the repayment of said money, but that said bank had unlawfully declined so to do, and refused to pay said money to plaintiff, who was the lawful owner of same, and refused to pay same to his mother as his agent; and that by reason of the facts said bank had converted plaintiff's money, and had become liable to plaintiff therefor with interest, etc. As to the remaining defendants plaintiff alleged that they were making some pretended claim to said money, which had no foundation in law or fact, and, as plaintiff is informed and believes, was based upon some character of judgment in garnishment, unlawfully obtained, to which plaintiff was not a party, and which in no manner, bound or affected his rights, but that the assertion of said pretended claim constituted a cloud upon the rights of plaintiff, and by reason thereof the defendant bank had refused to pay over said money to plaintiff."

Appellee bank answered:

"That it had on depost $310.50 in the name of Annie Elmore; that it did not know to whom said fund belonged; that appellant had sued C. S. Elmore in the district court in Limestone county, Tex., in cause No. 112; that he caused a writ of garnishment to be issued out of said court and served on the cashier of appellee bank, in Navarro county, Tex., where appellee was domiciled; that the writ required `____, cashier' of appellee bank, to answer what, if any, that he was indebted, etc., to C. S. Elmore, and did not require him to answer for the bank, this garnishment case being No. 113; that appellee filed in the said cause No. 113 its plea of privilege to have said matter heard in the district court in Navarro county, Tex.; that subject to its plea of venue and prayer to have matter heard in Navarro county, Tex., to which county said writ was issued and in which county said bank was domiciled, it excepted to the writ because same was issued to the First State Bank, and then required the said `____, cashier', to answer, etc.; that, subject to its plea to venue and exceptions, it pleaded that it had no funds, etc., purging itself; that without the knowledge of this appellee, on the day next to the last day of court in Limestone county, the court gave judgment against appellee in its absence and in absence of its attorney; that appellee had no knowledge of said judgment until after the term of court in which same was had had expired, and that it was then too late to appeal; that under the law it did not have to and could not appeal from said judgment, and had the right to litigate the issues in Navarro county (because the Limestone county judgment was void); that the judgment against this appellee entered in cause No. 113 in the district court of Limestone county, Tex., was void for many reasons, two of which we give here, to wit: (a) Because said court, under the law, did not have jurisdiction over this appellee, it not having appeared in said court other than to plead its privilege; and (b) because the judgment in said court in cause No. 112 was void, there being no service on said defendant and the records of said court disclosing this fact."

Reed answered, and relied on his rights against the bank —

"by virtue of his judgment in Limestone county, and claiming the $310.50 as proceeds of cotton sold belonging to C. S. Elmore on which he had a lien. This appellee asked the trial court to adjudge to whom the money belonged admitting having the money on deposit, and to allow it its attorney's fees as in law provided. The trial court gave the money to appellee Elmore, allowing no interest because no demand had been made for the money, and gave this appellee judgment for $100, its reasonable attorney's fee."

A trial resulted in a judgment in favor...

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10 cases
  • Smith v. Security Inv. Co.
    • United States
    • Texas Court of Appeals
    • April 12, 1929
    ...far as either garnishee or Sanders may be concerned. American Surety Co. v. Bernstein, 101 Tex. 189, 105 S. W. 990; Reed v. First State Bank (Tex. Civ. App.) 211 S. W. 333. Considering the evidence disclosed by the statement of facts, it fails to support the judgment. Aside from the fact th......
  • First Nat. Bank in Dallas v. Steves Sash & Door Co.
    • United States
    • Texas Court of Appeals
    • May 19, 1971
    ...the main case is pending or was tried. General Bonding & Casualty Ins. Co. v. Lawson (Tex.Civ.App.) 196 S.W. 346; Reed v. First State Bank of Purdon (Tex.Civ.App.) 211 S.W. 333; American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.W. 990. The article seems to be of like special jurisdictio......
  • Pinkston v. Victoria Bank & Trust Co.
    • United States
    • Texas Court of Appeals
    • November 4, 1948
    ...Bevil v. Trotti, Tex.Civ.App., 141 S.W. 287; General Bonding & Cas. Co. v. Lawson, Tex.Civ.App., 196 S.W. 346; Reed v. First State Bank of Purdon, Tex. Civ.App., 211 S.W. 333; Subscribers to Fidelity Lloyds of America v. Lyday, Tex. Civ.App., 5 S.W.2d 553; Clay Bldg. Material Co. v. First N......
  • Pan American National Bank v. Ridgway
    • United States
    • Texas Court of Appeals
    • January 12, 1972
    ...Antonio 1940, no writ); Dallas Packing Company v. Kimberling, 289 S.W. 149 (Tex.Civ.App.--Austin 1926, writ ref'd); Reed v. First State Bank, 211 S.W. 333 (Tex.Civ.App.--Dallas 1919, no writ); 27 Tex.Jur.2d, Garnishment, Section This Court in May v. Donalson, supra, said: 'The costs incurre......
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