Wall v. Wall

• Decision Date: 29 May 1944
• Docket Number: No. 5631.,5631.
• Citation: 181 S.W.2d 817
• Parties: WALL et al. v. WALL et al.
• Court: Texas Court of Appeals

Page 817

181 S.W.2d 817

WALL et al. v. WALL et al.

No. 5631.

Court of Civil Appeals of Texas. Amarillo.

May 29, 1944.

Rehearing Denied July 3, 1944.

Appeal from District Court, Lubbock County; J. E. Vickers, Judge.

Suit for divorce by Lillie C. Wall against Elmo Wall to which L. A. Wall, the Fort Worth National Bank, and the First National Bank of Fort Worth were made parties defendant, plaintiff alleging that a note on which L. A. Wall had brought suit against Elmo Wall in connection with which a writ of garnishment was issued and served upon the banks was fictitious and executed in order to defraud plaintiff of her interest in community funds on deposit with the banks. L. A. Wall filed separate pleas of privilege addressed to plaintiff's pleadings and to the bills of interpleader filed by the banks. From an order sustaining these pleas of privilege, plaintiff and the Fort Worth National Bank appeal.

Order affirmed.

Bryan, Stone, Wade & Agerton and B. G. Mansell, all of Fort Worth, for appellant Fort Worth Nat. Bank.

Clark M. Mullican and W. W. Campbell, both of Lubbock, for appellant Lillie C. Wall.

Thomas E. Hayden, Jr., of Abilene, for appellee L. A. Wall.

STOKES, Justice.

This is an appeal from an order of the 99th District Court of Lubbock County sustaining pleas of privilege of the appellee, L. A. Wall, to be sued in Taylor County, the county of his residence. The record reveals that in August 1943, the appellee, L. A. Wall, filed a suit against Elmo Wall and his wife, the appellant, Lillie C. Wall, in the District Court of Taylor County upon a promissory note executed by Elmo Wall, payable to L. A. Wall, in the sum of $9641.98, and on August 18, 1943, L. A. Wall filed in the same court an application for a writ of garnishment, which was issued and served upon the Fort Worth National Bank and the First National Bank of Fort Worth on August 20, 1943. Appellant, Lillie C. Wall, filed in that cause a plea of privilege to be sued in Lubbock County where she and her husband, Elmo Wall, resided, but before the plea of privilege was acted upon, the Taylor County district court, upon motion of the plaintiff in that case, L. A. Wall, dismissed her from the suit. On September 9, 1943, Lillie C. Wall filed the instant suit in the 99th District Court of Lubbock County for divorce from her husband, Elmo Wall, and made appellee, L. A. Wall, the Fort Worth National Bank, and the First National Bank of Fort Worth parties defendant, alleging that the appellee, L. A. Wall, was a brother of her husband, Elmo Wall, and that the note upon which he had brought the suit in the Taylor County district court was fictitious and fraudulent; that it was created through a conspiracy between her husband and his brother, the payee, to defraud her of her interest in community funds by creating a fictitious debt against the community and permitting L. A. Wall to collect or recover the same and then surreptitiously return it to her husband. She alleged that the two banks at Fort Worth had on deposit as community funds between herself and her husband, and in their joint accounts, approximately eleven thousand dollars and that the purpose of the garnishment suit was to subject these community funds to the fictitious debt represented by the note held by L. A. Wall. She prayed that she be granted a divorce from her husband, Elmo Wall, and for a partition of the community property; that the two banks be adudged stakeholders of the money on deposit to the joint accounts and that they be ordered to pay the same into the registry of the 99th District Court of Lubbock County for partition along with other community property; and that any and all claims of indebtedness held against her husband, Elmo Wall, by his brother, L. A. Wall, be adjudged of no force and effect in so far as her rights and interests were concerned and that, as to her, they be canceled and held for naught.

The writs of garnishment issued out of the District Court of Taylor County were served upon the Fort Worth banks on August 20, 1943, requiring them to answer on September 11, 1943, and on that day each of them filed its answer, the First National Bank admitting it had on deposit to the joint account of Lillie C. Wall and Elmo Wall $2801.51, and the Fort Worth National Bank admitting it had on deposit in a like account the sum of $7186.72. On October 1, 1943, the Fort Worth National Bank filed in the 99th District Court of Lubbock County its answer in this cause, which was amended January 12, 1944, and on September 17, 1943, the First National Bank filed its original answer in this cause, which was amended October 30, 1943. In both of the amended answers the banks made allegations requisite to bills of interpleader, in which they alleged the facts concerning the accounts on deposit in the names of Lillie C. Wall and Elmo Wall, and the facts in connection with the suit pending in the District Court of Taylor County, including the writs of garnishment that had been issued and served upon them. They also alleged that the 99th District Court at Lubbock had exclusive venue and jurisdiction under the facts to determine the ownership, rights, and equities between all of the contending parties with respect to the funds impounded by the writs of garnishment issued out of the District Court of Taylor County, and that unless venue and jurisdiction were entertained by the 99th District Court of Lubbock County the banks would be subjected to judgment of the District Court of Taylor County and also of the 99th District Court of Lubbock County, and subjected to vexation and expense of litigation upon the same liability in both such district courts. They prayed for an order directing the proper payment of the respective funds held by them, for attorneys' fees, and necessary expenses, including court costs.

Appellee, L. A. Wall, filed in this cause three separate pleas of privilege, which are involved in this appeal, one being addressed to the pleadings of Lillie C. Wall and the other two addressed to the alleged bills of interpleader filed by the banks. On January 24, 1944, the pleas of privilege and controverting affidavits and contests thereof, filed by Lillie C. Wall and each of the banks, were heard by the court, each of the pleas of privilege sustained and the cause of action asserted against L. A. Wall by Lillie C. Wall, as well as the bills of interpleader filed by the banks, was ordered transferred to the 42nd District Court of Taylor County, where the original suit of L. A. Wall v. Elmo Wall et ux., and the garnishment were pending. Lillie C. Wall and the Fort Worth National Bank excepted to the order of the court sustaining the pleas of privilege and have duly perfected appeals therefrom.

A number of assignments of error are presented and urged by the appellants in separate briefs but we do not consider it necessary to discuss them in detail. In substance, they are that the court erred in sustaining the pleas of privilege of L. A. Wall against the bills of interpleader filed by the two banks. The contention is based upon the theory that the complainant in a bill of interpleader has the right to select the proper forum for his suit, and the banks having, in effect, instituted bills of interpleader by their answers and selected the District Court of Lubbock County, the...