Tombler v. Palestine Ice Co.

• Decision Date: 08 December 1897
• Parties: TOMBLER v. PALESTINE ICE CO. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 896

43 S.W. 896

TOMBLER v. PALESTINE ICE CO. et al.¹

Court of Civil Appeals of Texas.

December 8, 1897.

Appeal from district court, Anderson county; A. A. Aldrich, Judge.

Garnishment suit by M. C. Tombler, as a creditor of one Ed. Hogaboom, against the Palestine Ice Company. From a judgment in favor of George C. Ball and another, as interveners, plaintiff appeals. Affirmed.

Thos. B. Greenwood & Son and Greaves & Martin, for appellant. S. A. McMeans, for appellees.

FLY, J.

This is a garnishment suit instituted by appellant, as a creditor of one Ed. Hogaboom, against the Palestine Ice Company. The latter (a private corporation) answered that Hogaboom had in his name on the books of the company 174 shares of stock, of the par value of $100 per share, but that George C. Ball asserted a claim to 101 of the shares, and O. Wheeler claimed the remaining 73 shares. Ball and Wheeler intervened; setting up that the shares had been deposited with them by Hogaboom (101 with Ball, and the remainder with Wheeler) as collateral security for debts owing to each, respectively. Appellant, in his reply to the pleas of intervention, pleaded that the garnishee was a private corporation, under title 20, Rev. St. Tex. 1879, and that under its by-laws, as well as the statutes, all of its stock was transferable only on the books of the corporation, and that appellant had fixed a valid lien on the stock of Hogaboom while it stood in his name on the books of the corporation, without notice, actual or constructive, of any transfer. Appellant also pleaded the statute of limitation of four years against the claim of Ball. The cause was tried without a jury, and resulted in a judgment ordering the stock to be sold as under execution, and that the claim of the interveners be discharged before the claim of appellant was paid.

We find as the conclusions of fact of this court the statement of facts found in the record, which is as follows:

"That on the 2d day of May, 1896, the plaintiff instituted suit in the district court of Anderson county against Ed. Hogaboom, for debt, upon Hogaboom's promissory note, payable to plaintiff's order, for $6,000 and interest, dated May 30, 1894, and due nine months from date, and that on the 14th day of December, 1896, plaintiff duly recovered a judgment in said suit against said Hogaboom for the sum of $6,163.75, with ten per cent. per annum interest thereon from said date, and for all costs of suit, amounting to $_____.

"That upon said 2d day of May, 1896, plaintiff, M. C. Tombler, duly sued out a writ of garnishment, with a view to secure his said debt, against the Palestine Ice Company, a private corporation created under title 20 of the Revised Statutes of Texas of 1879, and doing business in the city of Palestine, Anderson county, Texas, which writ was on said day duly served on said company.

"That on the 14th day of May, 1884, the said Ed. Hogaboom was the owner of 101 shares of stock of said Palestine Ice Company, of the par value of $100 each, evidenced by certificates No. 80, for 50 shares, No. 84, for 20 shares, and No. 81, for 31 shares; and said stock at said time stood in his name on the books of said company.

"That on the date last aforesaid the said Hogaboom borrowed from the intervener Geo. C. Ball five thousand dollars in cash, executing and delivering to said Ball his note for said amount, dated said date, due one year after date, and bearing ten per cent. per annum interest, and also at said time transferred and delivered to said Ball, as collateral security for said note, the shares of stock aforesaid; such transfer being evidenced by the recitals of said note, as well as by the signature of the said Hogaboom to the following blank indorsement on the back of each of said certificates, viz.:

"`For value received, I hereby sell, assign, and transfer to ____ ____ shares of the capital stock of the Palestine Ice Company, and do hereby constitute and appoint ____ attorney to make the necessary transfer on the books of the company. Done this ____ day of ____, A. D. 188_. [Signed] Ed. Hogaboom.'

"That on the 14th day of May, 1890, the said Hogaboom borrowed from said Ball the further and additional sum of five thousand dollars in cash, executing and delivering to said Ball at said time his note therefor, dated said date, due one year after date, and bearing ten per cent. per annum interest; and at said time it was agreed and stipulated orally between said Hogaboom and said Ball that (said Ball then having the possession of the said shares of stock as collateral security for said note of May 14, 1884) he, the said Ball, should also hold the same in possession as collateral security for the said additional loan of five thousand dollars.

"That said notes have never been paid, either in whole or in part, except that the interest due on same has been paid up to and including the 14th day of May, 1895, and said Ball is still the legal owner and holder of said notes.

"That on the 1st day of March, 1893, the said Hogaboom was also the owner of 73 shares of stock of said Palestine Ice Company, of the par value of $100 each, evidenced by certificates No. 95, for 30 shares, No. 92, for 20 shares, No. 83, for 9 shares, No. 99, for 5 shares, No. 61, for 3 shares, No. 86, for 3 shares, and No. 98, for 3 shares; and said stock at said time stood in his name on the books of said company.

"That on the date last aforesaid the said Hogaboom borrowed from intervener O. Wheeler eight thousand dollars, executing and delivering to him at said...