267 S.W. 301 | Tex. App. | 1924
Appellee, Wright, who had a judgment against appellant Canfield, sued out a writ of garnishment thereon on May 20, 1924, against E. R. Hart, garnishee. Hart answered, stating, first, that he did not owe Canfield anything, "except as hereinafter specifically set forth." He then states that Canfield, as a broker, had sold some land for him on the 5th day of May, 1924, and that he had become indebted to Canfield in the sum of $300; that at the request of Canfield he had credited $150 of said amount on an account which he held against Mrs. Clara Lindsey, and had placed the other $150 in the form of a check with said contract of sale, to be paid to Mrs. Lindsey when the land deal was closed; that before the deal was closed the writ was served upon him and that he was willing to pay the $150 to whomsoever the court should direct. He prayed that Mrs. Lindsey and her husband, as claimants of the fund, be made parties to this suit, so that the court might determine to whom the money should be paid. No citation was ever served upon Mrs. Lindsey or her husband. Canfield answered, denying that Hart was indebted to him in any amount. In response to special issues, the jury found that Hart owed Canfield $300 on the date of the service of the writ. Hart and Canfield have filed a supersedeas bond, but Hart, the garnishee, has filed no brief.
It is first contended that, because Hart's answer was not controverted, he *302
should have been discharged. Where the garnishee's answer shows that he was indebted to the defendant at the time the writ was served upon him, it is not necessary for the plaintiff to controvert the answer, in fact, the plaintiff does not want it controverted. White v. San Miguel (Tex.Civ.App.)
Hart testified that at Canfield's request he credited Mrs. Lindsey's account with $150 on the 5th day of May, but that, if the sale had not been consummated, he would have charged the $150 back to Mrs. Lindsey on his books. This shows clearly that the $150 was credited conditionally, and, since the garnishment was served before the deal was closed, its effect is to impound the money in his hands as belonging to Canfield.
The account of Mrs. Lindsey could not either in fact or in law be credited with an amount which Hart did not owe Canfield on the 5th day of May. The uncontradicted evidence is that Hart could not owe Canfield any part of the $300 until the deal was closed, and this was not effected until several days after the garnishment was served. The agreement to credit the $150 is not an assignment of that much of the $300 commission thereafter to become due. There can be no assignment of a fund which does not exist. 1 Jones on Liens (2d Ed.) §§ 34, 48, 50; Hutcheson v. King,
For the reasons above stated, and because Canfield has no right to appeal, the judgment will be affirmed as to him. Because Hart has filed no brief and for the further reason that the only error which could be urged in his favor is the exclusion of certain testimony set out in his bill of exception No. 12, and which, if admitted, would have contradicted the case made by Canfield, the judgment as to all parties is affirmed.
