Amarillo Nat. Bank v. Panhandle Telephone & Telegraph Co.

169 S.W. 1091 | Tex. App. | 1914

HUFF, C. J.

The Amarillo National Bank, in a suit pending in the district court of Potter county against II. A. Campbell and others, sued out a writ of garnishment and caused the same to be served upon the Panhandle Telephone & Telegraph Company and H. H. Davenport & Co., on the 2d day of March, 1911. The suit against Campbell was for $8,-848.90, interest and attorney’s fees, which suit was afterwards prosecuted to judgment. On the 7th day of July, 1911, in the same suit, appellant sued out a second garnishment against J. E. Nunn and H. B. Sanborn, which was duly served on the said parties on said date last above mentioned. In each of the writs the garnishees were required to answer what, if anything, they were indebted to'H. A. Campbell. The firm of H. H. Davenport & Co. answered they were indebted to H. A. Campbell in the sum of $1,145.83, and answered the other statutory interrogatories in the negative. The Panhandle Telephone & Telegraxih Company answered that on the 20th day of September, A. D. 1909, Campbell obtained judgment against H. H. Davenport & Co., a firm composed of H. H. Davenport and W. W. Taylor, and at said tíme a mechanic’s, materialman’s and lumberman’s lien was foreclosed against the property of the Panhandle Telephone & Telegraph Company to secure the payment of said judgment, except the sum of $104.16, attorney’s fees, included in said judgment; that the judgment has not been paid; that it was ready, willing, and able to pay to the parties entitled to the same; that it was informed that after service of said writ on, to wit, April 1, 1911, that one J. E. Nunn was claiming to be the owner of the judgment and entitled to the proceeds’ thereof and prayed that Nunn be made a party thereto, and that it be protected in the payment of said sum, etc. J. E. Nunn answered, denying indebtedness, and answering in the negative the other statutory interrogatories. H. B. Sanborn answered that on the 18th day of April, 1911, H. A. Campbell transferred to him the judgment for the cash consideration of $1,327.25. He set up the garnishment proceedings by the bank against the telephone company, and alleged that he paid into the bank the consideration given for the judgment to be held in escrow and as a special deposit until any and all questions with reference to his title and right to said judgment in favor of H. A. Campbell should be settled and adjusted. He further set up that on April 1, 1911, the firm of Madden, Trulove & Kimbrough, representing themselves to be the attorneys of record for H. A. Campbell, purported to transfer the judgment to J. E. Nunn for a recited consideration of $1,320.94; that Nunn, is setting up a pretended claim of title to the judgment. It is alleged by him that the attorneys were without legal authority to make such transfer, and were not authorized ,by Campbell to do so. He further alleges if Nunn is the owner of such judgment, then Sanborn was not indebted to Campbell, but if Nunn was not the owner, then he was indebted in the sum of $1,327.25. The appellant bank, in reply to the answers of the several garnishees, set up the service of the writs of garnishment and that the garnishees each had notice of the service thereof at the date of their alleged purchase of the judgment. ■ The reply of appellant is lengthy, but, in effect, it denies a bona fide assignment of the judgment to Nunn, and also alleged the making of the deposit in the bank by Sanborn the consideration paid him for the judgment.

J. E. Nunn, by a first amended answer, and by a supplemental answer, set up fully and at length his defense to Sanborn’s answer, and to his rights against the garnishment. Among'other things, he alleged that he was the owner of the judgment in favor of H. A. Campbell in cause No. 1080 (Kellogg Switchboard Supply Co. v. H. H. Davenport et al.); that said judgment was based upon a note executed by H. H. Davenport & Co. to H. A. Campbell, for tbe sum of $1,000, interest and attorney’s fees; tbat tbe note, be was in-fprmed and believed, was indorsed before Campbell intervened in cause No. 1080, in wbieb judgment was thereafter obtained in favor of 'Campbell, and tbat about tbe time of Campbell’s intervention in tbe suit be transferred and assigned tbe note to one C. E. Oakes; tbat tbe note was placed in tbe bands of S. PI. Madden, of tbe law firm of Madden, Trulove & Kimbrough, for tbe purpose of bringing suit thereon; tbat Campbell informed tbe attorney tbat be bad transferred tbe note to C. E. Oakes, and tbat suit was • to be prosecuted to judgment in tbe name of Campbell, and when tbe judgment was collected tbe proceeds should be paid to C. E. Oakes, or to bis order; tbat Oakes informed tbe attorneys to tbe same effect, and also to pay tbe judgment when collected, either to him or to bis attorney, John W. Veale; that tbe attorneys prosecuted tbe suit to judgment, and obtained such on tbe note against H. H. Davenport & Co. and tbe Panhandle Telephone & Telegraph Company; tbat about April 1, 1911, tbe attorneys collected from J. E. Nunn tbe full amount of said judgment; and that said attorneys transferred the judgment to J. E. Nunn, and thereafter paid tbe same to John W. Veale, attorney for Oakes, which Oakes fully ratified. Tbe answer of Nunn further sets out tbe fact tbat be and Sanborn were large shareholders in tbe telephone company and bad liens on its property to secure certain bonds held by Nunn. We deem it unnecessary to set out in detail all tbe allegations with- reference to Nunn’s and Sanborn’s connection with tbe Panhandle Telephone & Telegraph Company. H. B. Sanborn died and bis wife, as survivor of tbe community, made herself a party to tbe suit. Tbe attorneys for all tbe parties in both of tbe gárnishment proceedings agreed to consolidate them into one suit, and tbat tbe pleadings filed in each case be considered as applicable to tbe whole consolidated cases. Upon this agreement tbe court ordered a consolidation. The court rendered judgment that tbe Amarillo National Bank take nothing against tbe several garnishees, and that Mrs. Sanborn take nothing against J. E. Nunn. Tbe facts in this case are sufficient to support tbe court in finding tbat H. A. Campbell transferred tbe indebtedness to C. E. Oakes, evidenced by the judgment obtained by H. A. Campbell against H. H. Davenport & Co. and the Panhandle Telephone & Telegraph Company, in tbe suit of Kellogg Switchboard & Supply Co. v. H. H. Davenport & Co. et al., No. 1080, and tbat tbe transfer occurred before 'Campbell intervened in tbat suit, "and tbat it was agreed between Campbell and Oakes tbat tbe proceeds collected thereon should be paid to Oakes; ..that it was agreed tbat tbe suit should be prosecuted in tbe name of Campbell for tbe use and benefit of Oakes; and tbat Madden, Trulove & Kimbrough would, in prosecuting tbe case, and in collecting tbe proceeds, act under tbe direction of Oakes. John W. Veale was authorized by Oakes to receive and receipt for tbe proceeds collected on tbe judgment for Oakes. ‘ Tbe firm of Madden, Trulove & Kim-brough recognized Oakes as tbe real beneficiary in the judgment and Campbell as a formal party thereto; and in assigning tbe judgment to Nunn, they were acting for both Campbell and Oakes in tbe collection of tbe judgment, and received tbe money from Nunn for tbe use and benefit of Oakes, and turned tbe amount over to John W. Veale, tbe authorized agent and attorney to receive it, and took bis receipt therefor as such attorney. Tbe assignment by Campbell to Oakes occurred long before any writ of garnishment was issued in this case and before tbe bank’s garnishment lien attached and before Campbell’s assignment to H. B. San-born.

[1] We do not think appellant’s first and second assignments are correct. While the Panhandle Telephone & Telegraph Company admitted owing Campbell the sum of $1,145.-83, it also in the same answer alleged that Nunn was setting up title to the judgment, and asked that he be made a party, and tbat the rights of the parties be adjudicated. Nunn set up bis title in the proceedings against him, and by agreement of the parties the two cases were consolidated, with the further agreement that the pleadings filed in each case should be considered applicable to the whole consolidated case. The court, under the pleadings and agreement, properly refused to render judgment against the Panhandle Telephone & Telegraph Company and in favor of the appellant, on the telephone company’s answer. Nunn was brought into the case, and under the law bad the right to intervene and set up his right to the funds, and if be established such right the Panhandle Telephone & Telegraph Company could not be subjected to two judgments for the same debt. Iglehart v. Moore, 21 Tex. 501; Kelly Grain Co. v. English, 34 S. W. 651; Swearingen v. Wilson, 2 Tex. Civ. App. 157, 21 S. W. 74; 20 Cyc. 1130-1133.

[2] We think the findings of fact supporting the judgment of the court dispose of the other assignments. If Campbell did not, in fact, own the judgment or indebtedness at the time of the service of the writ of garnishment, and such judgment was, in fact, the property of Oakes, the writ would fix no lien on the other debt in favor of the bank. We think the case of Smith v. Railway Co., 39 S. W. 969, 971, announces the rule which will govern the disposition of this case, and disposes of the several assignments made by appellant. The transfer of the indebtedness by Campbell to Oakes was made long before the writs of garnishment were served, and, although the phone company did not know that fact, it had the effect nevértheless of transferring its obligation to pay the debt to Oakes. Neely v. Grayson, 25 Tex. Civ. App. 513, 61 S. W. 559; Putnam v. Capps, 6 Tex. Civ. App. 610, 25 S. W. 1024; Hudson v. Morriss, 55 Tex. 595; 2 Black on Judgments, § 943.

When Nujm purchased the debt from Oakes he got the title thereto, and the fact that he’ knew when he purchased the debt the bank had garnisheed the same as the property of Campbell did not change the ownership, and would not defeat Nunn’s title acquired from Oakes which had vested in Oakes before the garnishment.

We regard it as being unnecessary to discuss the assignments of appellant in detail. The evidence is sharply conflicting as to whether the indebtedness was, in fact, transferred by Campbell to Oakes, and whether Oakes was the beneficiary in the judgment, and whether he was the real party to the suit and Campbell only the nominal party.

The trial court having resolved the conflict in favor of Nunn’s contention, and finding nothing in the record which would authorize us in reversing the trial court’s finding, as we view the case, it should be affirmed.

Affirmed.