Lead Opinion
Thе First National Bank of Waco, one of the appellees herein, sued Mrs. Ray W. Goldberg, Sophia Goldberg, and Ida Mae Bornstein (née Goldberg), and her husband, Stanley L. Bornstein, on a promissory note for the principal sum of $1,215, with interest and attorney’s fees alleged to have accrued thereon. A writ of garnishment was sued out in said cause against appellee Berkman individually and as independent executor of the estate of Mary G. Goldberg Thomas, deceased, and served on him on the 12th day of September, 1925. Said writ commanded said garnishee to appear on the 5th day of October, 1925, the same being the first day of the ensuing term of said court, and answer what, if anything, he was indebted to said several defendants both in his individual capacity and, as executor of said estate. Since the indebtedness of the garnishee to Mrs. Bornstein is the only issue involved in this appeal, further reference to the other parties defendant in the original suit may be omitted.
*866 The garnishee filed his answer in said cause on October 6, 1925, appearance day of said term. In said answer he denied being individually indebted to Mrs. Bornstein in any sum whatever. He further answered that Mrs. Bornstein, on September 8, 1925, in a certain cause entitled Ida Mae Goldberg et al. v. J. Berkman et al., pending in said court, and numbered 27441 on the docket thereof, recovered a judgment against him, the said garnishee, as independent executor of the estate of Mary G. Goldberg Thomas, deceased, in the sum of $1,000, and made the judgment in said cause a part of his said answer. He further set out in said answer that motion for new trial in said cause had been' filed and overruled on October 3, 1925, and that notice of appeal had been given by Morris Thomas, one of the parties to said suit. The original petition in said cause No. .27441 shows that the same was a suit brought by Mrs. Bornstein and husband and other legatees under the will of Mrs. Thomas, against said Berkman as independent executor of said will and the remaining legatees thereunder, and against Morris Thomas, the surviving husband of said testatrix, for partition and distribution of her estate. The answer of the defendant Berkman in said cause made the will of Mrs. Thomas, a copy of which was attached thereto, a part thereof. The will of said Mrs. Thomas was made by her while she was Mary G. Goldberg and before her marriage, to said Thomas. By the terms thereof she bequeathed ,to Mrs. Born-stein and thirteen others specific legacies amounting in the aggregate to $8,000. She bequeathed the residue of her estate to the Congregation Agudath Jacob, a religious corporation. Said answer showed that the entire estate which came into the hands of said executor consisted of seven promissory notes, the principal of which aggregated the sum оf $8,687.50. Said answer further showed that said executor had collected two of said notes and various sums of accrued interest on all of the same, and that, after paying all costs and expense of administration, he had on hand in cash the sum of $2,465.92 and five, of said notes still uncollected, the principal of which aggregated $6,687.50. Said executor in said-answer further stated that he was willing that the estate remaining in his hands be partitioned among the parties entitled thereto, and asked the court to determine the several parties entitled to sаid funds and to order the same distributed according to their respective interests. He further stated that it was impossible to partition said notes in kind, and recommended that they be sold and the proceeds thereof partitioned. He further alleged that the defendant Morris Thomas was claiming some interest in the property in his hands, and asked that such claim be canceled. He further asked that Ms account as executor be approved, that he be allowed certain additional compensation, and that he be discharged from his trust. The pleadings of said Thomas are not found in the record, and the nature of his claim is not specifically stated, though the assertion of a claim on his part was also alleged by the plaintiffs in said suit.
The judgment of the court in said cause No. 27441, made a part of the garnishee’s answer in this cause, recited that the several parties to said suit appeared ⅛ person or by attorney, and that said Morris Thomas, of the state of New York, by his duly authorized attorney, had entered an appearance and filed an answer therein and рleaded to the-jurisdiction of the court, and that said plea was considered by the court and overruled. Said judgment further recited that the court, after hearing the evidence, found that said Morris Thomas had no interest in any of the property or funds in the hands of said executor, and divested him of all right, title, and interest therein and vested the same in said executor in his representative capacity, and canceled all claims asserted by said Thomas in or to any of said property. The court also found that the several parties “to said suit were entitled to receive out of the proceeds of said property in the hands of the executor the respective amounts bequeathed to them by the will of the deceased Mrs. Thomas, and awarded to each of them, respectively, a judgment against the executor therefor. The court further appointed the executor a receiver of said notes, and authorized him as such to sell the same and report his action to the court. The court also, in said judgment expressly approved the acts of the executor. It may be further stated in this connection that said executor, acting as receiver under said order of the court, filed his report of the sale of said notes and the bill of costs incurred by him in making such sale, and the same were on the 3d day of October, 1925, duly approved by the court, and said receiver discharged. Said Morris Thomas, defendant in said cause No. 27441, filed his original motion for new trial therein on September 30, 1925, and his. amended motion for new trial therein on October 3, 1925, which motion was overruled and notice of aрpeal given on said day, the same being the last day'of that term of the court. Said Thomas in due time perfected his appeal by cost bond, and the judgment of the trial court in said cause was affirmed by this court on the 8th day of April, 1926.
Mrs. Bornstein, by written assignment dated September 1, 1925, but not delivered until after the service of said writ of garnishment, assigned $250 of the legacy bequeathed to her by the will of Mrs. Thomas, to appellant James' P. Alexander. Thereafter on the 23d day of March, 1926, she executed another instrument, assigning to appellant Alexander *867 the sum of $360 to be paid out of tbe judgment recovered by ber against said executor in said cause No. 27441. It is conceded that the sum of $260 theretofore assigned to appellant Alexander is included in this latter assignment. Mrs. Bornstein thereafter, on the 27th day of March, 1926, assigned the remaining $650 of said judgment to appellant T. E. Haney. On the 1st day of May, 1926, appellants Alexander and Haney filed their plea of intervention in this cause, in which they set up their respective assignments as aforesaid, alleged that the proceeds of said judgment were not subject to garnishment, and prayed for recovery of the funds awarded to Mrs. Bornstein by the judgment in said cause No. 27441 and still remaining in the hands of said executor, the garnishee herein.
The garnishee on the 8th day of June, 1926, filed an amended answer in this cause, in which he alleged tliat the judgment of the trial court in said cause No. 27441 had been duly affirmed by the Court of Civil Appeals (
Appellee bank on June 11, 1926, recovered judgment against Mrs. Bornstein for the sum of $1,473.13. This cause came on for trial in said court on the 5th day of August, 1927. ■ The court having heard the evidence,' rendered judgment in favor of appellee bank against the garnishee J. Berbman as independent executor of the estate of Mrs. Thomas, deceased, in -the sum of $750, and in favor of apрellant James P. Alexander against said garnishee for the further sum of $250. Appellant Haney was denied any recovery. Said judgment is here presented for review.
Opinion.
The principal issue to be determined is whether the legacy bequeathed to Mrs. Born-stein by Mrs. Thomas in her will, and after-wards merged into a judgment in her favor against the executor of said will in the decree for final partition and distribution of Mrs. Thomas’ estate, was subject to garnishment either at the time of the service of the writ of garnishment herein or at the time the garnishee filed his answer on apрearance- day of the term of court to which said writ was made returnable. Appellants contend that the recovery awarded in said judgment was not subject to garnishment on either of said dates. Appellee bank contends the contrary. Since it is conceded that, if the recovery awarded to Mrs. Bornstein by said judgment was subject to garnishment on October 6,' 1925, the date of the filing of the garnishee’s original answer, the bank’s rights as garnishing creditor attached, it will be sufficient to consider the status of such recovery at that time. Said recovery wаs part of a judgment approving the final account of the executor, establishing the rights of Mrs. Bornstein and the various other legatees in and to the funds in the hands of the executor, and awarding a recovery against him in'favor of each party entitled to a specific legacy for the amount thereof, as stated in said will, and directing that the same be satisfied out of the funds in the hands of the executor, and awarding the residuary legatee a recovery for any and all surplus funds after discharging such specific legacies so recоvered. Said judgment of which said recovery by- Mrs. Bornstein formed a part also adjudicated the claim of Morris Thoinas in and to said funds in the hands of the executor, declared the same invalid, and denied him a recovery thereon. According to the record in said cause No. 27441, the funds in the' hands of the executor, after deducting the expenses and costs of suit incurred therein, were but little more than sufficient to discharge the specific legacies in full. Any substantial recovery by said Thomas would have reduced the amount of the estate in the hаnds of the executor to such extent as to make payment in full of each of said legacies impossible. It is therefore apparent that, until said judgment be-came final, the amount Mrs. Bornstein was entitled to receive by reason of the legacy so bequeathed to her and her recovery thereon against said executor was not conclusively determined, and the amount he was legally liable to pay her on that account necessarily uncertain.
In order for a fund or liability to be subject to garnishment, -the amount thereof must be capable of ascertainment at least at the time of the filing of the garnishee’s answer. Burke v. Hance,
“The demand .being uncertain, is not made certain until the amount is fixed by a final judgment of the court — that is to say, a judgment not merely final in the sense that an appeal lies therefrom, but a judgment final in the sense that it has reached that stage in judicial procedure when it can neither be set aside nor reversed upon appeal. In the case of the Texas Trunk Railway Co. v. Jackson,85 Tex. 605 [22 S. W. 1030 ] Chief Justice Stayton, speaking for the court,'says: ‘We are of the opinion that an appeal or writ of error, whether prosecuted under cost or supersedeas bond, during pendency deprives a judgment of that finality of character necessary to entitle it to admission in evidence in support of the right or defense declared by it; and from this necessarily follows the insufficiency of a plea in bar based on it.’ In the case of Kreisle v. Campbell,89 Tex. 104 [33 S. W. 852 ],’this question came before us upon an application for a writ of error, but, since the judgment was sustainable upon other grounds, we did not find it necessary to decide the point, and its determination was expressly waived. The Court of Civil Appeals for the Second District, however, in that case, held in accordance with our opinion. Same case [Tex. Civ. App.]32 S. W. 581 .”
We therefore hold that neither said legacy to Mrs. Bornstein nor the recovery in her favor in which it was merged was subject to the bank’s writ at the time the ‘garnishee filed his original answer herein. See, also, Burke v. Hance, supra; Kreisle v. Campbell (Tex. Civ. App.)
Appellee bank contends that the rule just announced does not apply in this case because the appeal, from the judgment in said cause No. 27441 was perfected and prosecuted by Morris Thomas alone. We do not think such contention sound. The judgment denying any recovery whatever to Morris Thomas was a judgment in favor of Mrs. Bornstein to the extent that it determined that the funds out of which her recovery was to be satisfied should not be diminished by reason of the claims asserted by him, and in favor of the executor, absolving him from any liability to said Thomas with reference to such funds. Our Supreme Court in the case of Missouri, K. & T. Ry. Co. v. Enos,
“But where the rights of one party are dependent in any manner upon those of another, it [the appellate court] will treat the judgment as an entirety, and, where a reversal is ré-quired as to one, it will reverse the judgment . as a whole. * ⅜ ⅜ That a judgment against two or more parties which is appealed from by one may be reversed as to the one and affirmed as to the others, or may be reversed as a whole, according to the manifest justice of the case, we think the eases cited sufficiently show.”
See, also, Hamilton v. Prescott,
The appeal of Morris Thomas conferred jurisdiction upon the Court of Civil Appeals to reverse the judgment of the trial court and to remand the cause for a retrial as between all the parties thereto, and deprived the judgment so appealed from of the finality required to make the defendant therein subject to garnishment on account of - the recoveries there awarded against him.
Appellee further contends that, because this suit was not tried until the judgment in said cause No. 27441 became final by reason of affirmance on appeal, and because such affirmance was set up by the garnishee in an amended answer, the recovery awarded it was proper and ought to be affirmed. The writ of garnishment served on the garnishee commanded him to appear and answer on the first day of the ensuing term of the court and to disclose in said answer what, if anything, he was then indebted to Mrs. Bornstein and what, if anything, he was so indebted at the time same was served. The statute '(article 40S7, Rev. St. 1925) required him to file such answer on or before the appearance day of said term of court. He complied with the command of the writ and the requirement of the statute. The service of the writ impounded any sum or sums owed by the garnishee to Mrs. Bornstein which were subject to garnishment either at the lime of the service thereof or at the time of the filing of his answer. Gause v. Cone,
The judgment of the trial court, so far as it awards a recovery against the garnishee in favor of the bank, is hеre reversed, and judgment is rendered that the bank take nothing herein, and that the appellant Alexander recover of the garnishee the sum of $350, and that appellant Haney recover of the garnishee the sum of $650, and that both the appellants recover their costs.
Dissenting Opinion
Not being able to agree with my associates, I file the following dissenting opinion:
The legal question here involved is, Was the legacy in question subject to garnishment at the time the writ was served, or at the time the original answer in garnishment was filed? The will by which Mrs. Bornstein was bequeathеd $1,000 provided, in effect, that the county court should have no jurisdiction except to probate the will, and the return and approval of an inventory and appraisement, and that no bond should be required of the executor. The will was duly probated, the inventory returned, and the independent executor duly qualified. The county court had no further jurisdiction over the estate. The trial court correctly so recognized in providing for the collection of the district court judgment by the issuance of process, rather than directing it certifiеd to the county court for payment, etc. More than a year after the will was probated, Mrs. Bornstein brought suit against the independent executor for distribution. If this suit had never been filed, this $1,000 legacy, it is thought, under the facts of this case, the will having been duly probated, the independent executor duly qualified, there being no debts against the estate, and it appearing affirmatively the assets were sufficient to pay all legacies in full, would surely have been subject to garnishment. It was not a claim for damages based upon a tort, but was a liquidated demаnd fixed and determined by the will — a written instrument which had been duly probated. It is thought the case of Waples-Platter Grocer Co. v. Texas P. Railway Co.,
"(1) Whether, pending said appeal therefrom, the said judgment in favor of Downtain was subject to * * * garnishment? (2) If not, whether the claim of the judgment debtor, Downtain, against the garnishee, the Texas Pacific Railway Company, as stated and shown in the agreed statement of facts, is a demand оf such character as to be subject to garnishment, even before the judgment which determined his rights thereon?"
In other words, was Downtain's judgment against the railroad subject to garnishment while appeal was pending therefrom? And, if not, then was Downtain's claim against the railroad subject to garnishment before it was reduced to judgment? The court first proceeded to determine the"nature" of Downtain's claim against the railway company, and found that his "cause of action was for unliquidated damages for breach of a contract," and said further:
"When the dаmages are unliquidated and in their nature uncertain, the demand is not subject to garnishment."
So the court answered the second question in the negative, and said further:
"It results from the foregoing conclusion that a like answer must be given to the first question."
In other words, the court held that, since Downtain's claim was not subject to garnishment because it was for unliquidated damages, the same was not subject to garnishment after being reduced to judgment while appeal therefrom was pending. The clear inference is that, if his claim
was subject to garnishment, then after same was merged into a judgment it would still be so subject, although an appeal therefrom was pending. *873
There was no controversy between any of the parties to the suit for distribution, unless it can be said Morris Thomas was claiming a part of the estate. He filed no pleading, except a plea to the jurisdiction of the court, which was overruled, so we cannot know that he was claiming any interest in the estate in Texas; but suppose he was, and suppose a recovery by him would have reduced the amount of Mrs. Bornstein's legacy, would that render the reduced amount of her legacy, whatever it might be, immune from garnishment? It is thought not. If the claim of Thomas in the suit did render the amount of her claim uncertain, it did not change the nature of her claim. It did not change it into a claim resting in tort for unliquidated damages. It is not the uncertainty of a claim that determines whether or not it is subject to garnishment, but it is the uncertainty of a claim by reason of the nature of such claim. Suppose the suit for distribution had not been filed, and the garnishee had answered setting out the $1,000 legacy to Mrs. Bornstein, but alleging Thomas was claiming an interest in same, and he had been made a party to this garnishment suit and claimed a part or all of it, thereby rendering the amount of her claim uncertain, would her claim, whatever it might be, cease to be subject to garnishment? The garnishee can require the claimants of a fund to interplead and to settle their rights to the fund in his hands. Foy v. East Dallas Bank (Tex.Civ.App.)
The question here involved should be determined not from what the facts might have been, but from what they actually were On September 8, 1925, the suit for distribution of the estate according to the provisions of the will was tried, and on said date judgment entered, adjudging that Thomas had no interest in said estate; that the assets of the estate consisted of $2,465.92 cash on hand, vendor lien notes for $6,000, and secured personal notes for $687.50, making a total of $9,153.42, all, as set оut in the report of the independent executor, situated in Waco, Tex. The court directed the distribution of said estate, and to that end appointed the independent executor as receiver to sell said notes and report to the present term of the court. The court further entered judgment awarding to each of the legatees a recovery for the amount as provided by said will to such legatee, awarding to Mrs. Bornstein and husband a judgment for $1,000 against the independent executor, and directing execution to issue against him as such executor for same. Said independent executor as receiver, having converted said notes into cash, did report on October 3, 1925, and, after being allowed $58.40 expense in selling said notes, was on the same date discharged by the court as such receiver. As stated, the above judgment was entered September 8, 1925. The writ of garnishment was served on Berkman as independent executor on September 12, 1925. It will thus be seen, at the time the writ was served, a judgment of the court had already determined the assets sufficient to satisfy аll legacies in full and awarded to Mrs. Bornstein judgment for her $1,000 legacy and execution to enforce same, thus sweeping away all doubt, either actual or imaginary, of her right to her legacy and the amount of same, unless same was rendered uncertain by the appeal of Thomas, taken later. The garnishee is required to answer what he was indebted at the time he answers as well as at the time of the service. At the time he was required to answer, October 6, 1925, the entire estate had been converted into money and judgment entered for Mrs. Bornstein for her $1,000, as shown by the record and as shown by the original answer of the garnishee, and there was nothing left to be determined, except the appeal of Morris Thomas. The judgment in favor of Mrs. Bornstein in no way changed the nature or character of said claim — it was still subject to the writ of garnishment, and it is thought clearly the subsequent appeal from said judgment, both proceedings being in the same court, did not affect the garnishment lien which had attached by the service of the writ. The garnishee in his original answer could neither affirm nor deny his indebtedness to Mrs. Bornstein, so he properly set forth the legacy, as provided for in the will, its probate, the judgment in favor of Mrs. Bornstein in the suit for distribution, for said legacy of, 1,000, and the appeal by *874
Morris Thomas therefrom. But none of these matters affected the garnishment lien which had attached by reason of the service of the writ. The trial court, it is thought, pursued the proper course in continuing the garnishment suit on his docket until the appeal by Thomas was disposed of, and then granting the garnishee leave to file the amended answer, at least, it was not error for him to do so. Article