Sellers v. Puckett

• Decision Date: 20 November 1915
• Docket Number: (No. 854.)
• Citation: 180 S.W. 639
• Parties: SELLERS v. PUCKETT et al.
• Court: Texas Court of Appeals

180 S.W. 639

SELLERS v. PUCKETT et al.

(No. 854.)

Court of Civil Appeals of Texas. Amarillo.

November 20, 1915.

Dissenting Opinion, November 22, 1915.

Rehearing Denied December 11, 1915.

Appeal from Potter County Court; T. W. McBride, Judge.

Action by O. I. Sellers against J. W. Puckett and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

Lloyd Fletcher, of Amarillo, for appellant. R. E. Underwood, P. R. Underwood, and Ben H. Stone, all of Amarillo, for appellees.

HUFF, C. J.

This suit originated in the justice court, and from a judgment obtained in that court in favor of appellant, it was appealed to the county court of Potter county by the appellees, where judgment was rendered in favor of appellees, from which appellant appeals to this court.

O. I. Sellers obtained judgment against F. S. Franklin for the sum of $156.53 May 4, 1914, with 10 per cent. interest per annum. The judgment was rendered in the justice court, precinct No. 1. On this judgment Sellers sued out writs of garnishment December 9, 1914, against J. W. Puckett, Grover Hill, and the Amarillo Bank & Trust Company. Puckett answered that he did not owe Franklin anything, but that the partnership of Cook & Puckett, of which he was a member, was indebted to the partnership of Franklin & Hill, in the sum of $120.75. The Amarillo Bank & Trust Company admitted it was indebted to Franklin in the sum of $30.10. Grover Hill answered that he was not indebted to Franklin in any sum. On the 14th day of December, 1914, F. S. Franklin executed a replevin bond, with C. L. Kilgore and F. M. Hill as sureties thereon. The bond recites the issuance of the writs of garnishment on the judgment, in the case of Sellers against Franklin, and the service of the writs on the above-named garnishees, stating the indebtedness to be of the sum of $165.80, principal and interest due on the judgment, and that the garnishments were then pending, and that Franklin was desirous of replevying any effects, debts, shares, or claims seized or garnished under and by virtue of each and all of said writs.

"Now, therefore, in order to release from the lien of garnishment created by the issuance and service of each of said writs, any and all debts, claims, shares or effects, if any, owing by or in the possession of J. W. Puckett, Grover Hill and the Amarillo Bank & Trust Company, and belonging to the said F. S. Franklin at the date of service of the said writ of garnishment, and which may be owing by them or shall come into their possession up to the time of filing of their answer as garnishees in said cause, or which become due before the filing of their answer, we, the undersigned, Felix S. Franklin, as principal, and ____ and ____ as sureties, acknowledge ourselves bound to pay to the said O. I. Sellers the sum of three hundred and thirty and no/100 ($330.00) dollars, conditioned to the payment of any judgment that may be rendered against the said J. W. Puckett, Grover Hill, or the Amarillo Bank & Trust Company, as garnishees." Signed by Felix S. Franklin, C. L. Kilgore, and F. M. Hill.

On the 18th day of January, 1915, in the justice court, Franklin filed what he designated as "defendant's traverse," in which he alleges that neither of the garnishees was indebted to him, that Cook and Puckett listed with Franklin & Hill certain cattle for sale, and that the partnership sold the same, and thereby earned commission in the sum of $120.75, which amount was due by Cook & Puckett to the partnership of Franklin & Hill; that the partnership, in effecting the sale of the cattle, incurred expenses to the amount of $30 to one Caldwell, for which Franklin gave his check to Caldwell; that at that time he had no funds in the Amarillo Bank & Trust Company upon which the check was drawn; that Grover Hill, his partner, out of his own fund, deposited in said bank the sum for which the check was drawn, and that the fund so deposited was not the private fund of Franklin, by reason of which the fund was a special deposit assigned to Caldwell by virtue of the check theretofore given, and the purpose of the deposit was known to the bank; that the bank was incorrect in its answer in admitting indebtedness to Franklin by reason of the facts above stated. Grover Hill also filed a plea of intervention, setting up substantially the same facts as alleged by Franklin as to the $30 deposit. The trial court finds substantially that Grover Hill was not indebted to, or had in hand any effects belonging to, Franklin; that Cook & Puckett were indebted to Franklin & Hill in the sum of $120.75; that the $30 in the bank was deposited, as alleged, by Franklin; and that the bank had notice thereof, and the check was issued to Caldwell as alleged, and was returned unpaid, but after the replevy bond was executed the same was delivered to Grover Hill; that Puckett refused to turn over the funds in his hands to Franklin after the replevy bond was executed, but still retained it. Puckett was a member of the partnership of Cook & Puckett.

After the execution of the replevy bond the garnishee is only a nominal party, and only a nominal judgment could be rendered against the garnishee. The evident purpose of the replevy bond was to release the lien fixed by the garnishment, and the bond in this case so recites. The debts having been released from the lien so fixed upon them authorized the garnishees therein to pay the sum to the defendant in the judgment, and the principal in the bond, and thereafter the judgment plaintiff must look to the bond for the payment of the indebtedness. Tinsley v. Ardrey, 26 Tex. Civ. App. 561, 64 S. W. 805; Modern Dairy v. Blanke, etc., 116 S. W. 154. The fact that Puckett did not actually pay the money over to Franklin, we think, should make no material difference. When the bond was accepted by the proper officer, the principal on the bond was entitled to the money due on the debt. The lien by garnishment was released, and the collection of the debt by Franklin could be enforced. There was no legal excuse, therefore, on the part of Puckett for not paying it. 116 S. W. 154, supra.

Franklin and his bondsmen will not be heard, after executing the bond and obtaining the release of the lien, to say the indebtedness garnished was not owing Franklin, the judgment debtor. Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30; Davis v. McFall, 168 S. W. 453; Amarillo National Bank v. Sanborn, 169 S. W. 1075. Estoppel in cases of this character does not rest alone upon the fact that the party executing the bond received the money due him, but, also— "a party who has, with knowledge of the facts, assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith, to the prejudice of the adverse party." 169 S. W. 1075, supra.

We think when it was shown that Cook & Puckett were indebted and that J. W. Puckett was a member of that firm, that under article 293, R. C. S., appellant was entitled to a judgment. The answer of Puckett certainly makes it appear that Puckett was indebted to the defendant debtor in the amount stated. If Puckett was a partner, he was liable for the entire amount. When he disclosed the nature of the indebtedness, in so far as his answer and the pleadings in this case are concerned, it would permit a judgment against him for the debt due by the partnership and against him who was the partner served. The answer of Puckett disclosed his liability. A partner cannot complain because judgment is rendered against him alone on a firm debt, since the obligation is joint and several. Hoxie v. Farmer, etc., 20 Tex. Civ. App. 462, 49 S. W. 637; Davis v. Willis, 47 Tex. 154; Wiggins v. Blackshear, 86 Tex. 665, 26 S. W. 939. If in fact the partnership was not a party and the partner who is sued is bound for the entire indebtedness, if he desires, he may waive the right to have his partner or the partnership joined. As it is the interest of the one so sued to have his partner joined if he failed to take advantage of the omission in due time by a proper plea in abatement, then he should be considered as having waived his privilege. Davis v. Willis, 47 Tex. 162; Seimsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30, supra. If Franklin is not estopped in this case as to such plea, he should have presented the same at the trial, and at the proper time. It is a matter, however, in which he could have no interest, whether the judgment bound Cook or not; that was a matter in which Puckett alone was interested, and he did not seek to have his partner made a party, or an abatement on that account.

We think the trial court was in error in rendering...