Van Slyck v. Dallas Bank & Trust Co.

• Decision Date: 12 December 1931
• Docket Number: No. 11188.,11188.
• Citation: 45 S.W.2d 641
• Parties: VAN SLYCK v. DALLAS BANK & TRUST CO. et al.
• Court: Texas Court of Appeals

45 S.W.2d 641

VAN SLYCK v. DALLAS BANK & TRUST CO. et al.

No. 11188.

Court of Civil Appeals of Texas. Dallas.

December 12, 1931.

Rehearing Denied January 16, 1932.

Original application by K. Van Slyck for writs of prohibition and mandamus to be directed to the Honorable Towne Young, Judge of the Forty-Fourth District Court of Dallas County and others, opposed by the Dallas Bank & Trust Company and others.

Application denied.

John W. Craig and K. Van Slyck, both of Dallas, for relator.

J. L. Lipscomb and McBride, O'Donnell & Hamilton, all of Dallas, for respondents.

LOONEY, J.

This is an original application by K. Van Slyck, as relator, against Hon. Towne Young, judge of the Forty-Fourth district court of Dallas county, Hon. J. Balie Finks, district clerk of Dallas county, and Dallas Bank & Trust Company, successor to Dallas National Bank, for writs of prohibition and mandamus.

The application is based on the following facts: On September 7, 1929, E. V. Ashworth recovered judgment in the Fourteenth judicial district of Dallas county against the Dallas National Bank, for the sum of $1,607.82, which was affirmed by this court [see Dallas Nat. Bank v. Peaslee-Gaulbert Co., 35 S.W. (2d) 221], and on November 11, 1931, the Supreme Court having refused to take jurisdiction, mandate issued. On November 2, 1931, Dallas Bank & Trust Company, successor to the rights and liabilities of the Dallas National Bank, filed in the Forty-Fourth judicial district court of Dallas county a petition seeking the remedy of interpleader, alleging in substance that, after the rendition of judgment in favor of Ashworth against the Dallas National Bank, the latter was dissolved, and that petitioner (Dallas Bank & Trust Company) acquired title to and possession of the assets of the dissolved corporation, and assumed and became liable for all its liabilities, including the Ashworth judgment; that the cause of action on which Ashworth recovered judgment was for labor and material furnished by him under a subcontract with general contractors, who erected an office building for Dallas National Bank, and that the Union Indemnity Company of New Orleans, La., became surety for Ashworth on a bond given to secure the faithful performance of his contract with the general contractors; that at the time the bond was executed Ashworth granted, set over, and conveyed to the indemnity company all the money due him on said contract, and the proceeds to be derived therefrom, and that, under said assignment, the indemnity company claimed the entire proceeds of the Ashworth judgment; that notice to that effect was served on the Dallas Bank & Trust Company by attorneys for the indemnity company. Among other things, the notice stated: "We are advised that in the above styled suit E. V. Ashworth has recovered judgment for sums due for work on this building and we as attorneys and agents of the Union Indemnity Company give you notice of the assignment of such funds to the Union Indemnity Company and hereby respectfully request that you do not pay said money or any part thereof to any person other than the Union Indemnity Company." The bank also alleged in its bill for interpleader that, long prior to the final disposition by the Supreme Court of the case in which Ashworth recovered judgment, Leachman & Gardere, Ashworth's attorneys in the litigation, gave the bank notice that they claimed half interest in the proceeds of the judgment, and asserted an attorney's lien; that the relator, K. Van Slyck, is also claiming to own the judgment under a transfer executed by Ashworth, and demands of the Dallas Bank & Trust Company that payment of same be made to him. Being thus apprised of the conflicting claims, Dallas Bank & Trust Company filed its bill of interpleader, making the indemnity company, E. V. Ashworth, K. Van Slyck, and Leachman & Gardere defendants, acknowledging validity of the judgment and liability for its payment, paid into the registry of court the full amount due thereon, and prayed that the rival claimants be cited, required to interplead and assert their rights, to the end that the court might determine the issues presented and order the fund paid out accordingly, and by decree declare the Ashworth judgment satisfied, etc. On November 13, 1931, the bank filed an amended petition making J. Balie Finks, district clerk, defendant, alleging, in addition to the allegations of the...