*1 im.] McLaughlin. Muller conception, the facts as disclosed by the record. We stated the main that cause No. McFadden et Simms, was, al. v. together with the two garnishment proceedings, consolidated with the suit of ap- pellants against Duff & Duff. The order of consolidation is not em- record, bodied and it is difficult to determine from the recitals the judgment what just consolidations In were made. light entire record we think it probable that the main et case McFadden al. v. Simms was not included the order. be, But however that may the correctness of our conclusion is not affected, for the fact remains that the trial court did not issues, of all dispose or all the parties and expressly retained the cause on the docket and held the judgment open until the matters disposed reserved could be of. The judgment from contains appealed order: following is “It further ordered by the court this case be continued as to McFadden, said Kyle Weiss & and D. B. Simms, and as to said Texas New Orleans Bail way Co. and as to the Wilson Hardware Co.” We adhere to our first conclusion. As our opinion was addressed to the motion dismiss, and not to merits, we stated facts way. In general doing we fell into some inaccuracies which did not affect determined, the issue but which arewe nevertheless requested correct. For the sake of
accuracy we make the corrections. following The draft of the railroad company issued on the 1st of April and delivered to Duff & Duff on April 2d. The garnishment was 4th, served on the company April therefore after instead of before date the draft.' The draft the railroad paid by to Duff Duff company after 13th. Both before and Duff & Duff had April collected the draft Wilson the railroad Hardware had company Company presented them given & Duff the drafts payment to Duff Simms. our fact findings substantially This we believe renders accurate. The motion overruled. Overruled. of error refused.
Writ McLaughlin H. H. P. John Muller et al.
Decided December Judgment. Lien—Materialman—Personal 1.—Mechanic’s furnishing material notice of his claim to the man the prop- entitled, erty the latter has settled the contractor becomes before under law, to a the mechanic’s owner. ON MOTION FOR REHEARING. 2.—Same—Homestead—Lien. property improved improve- is homestead and the contract Where the it, wife, signed by ment is not no lien can be established and the serving material man accordance with statute upon the owner Civil—29. Yol. XXXVII. Appeals Reports, Vol. [December, Texas Civil right lien nor the the contractor obtains neither *2 settlement with
before personal garnishment. owner; reach judgment against he can such indebtedness of Harris. Tried Hon. Error from the District Court below before ¡Norman Kittrell. G. Andrews, Streetman, 1. Where, in an in error. Ball & plaintiff a the owner of a against building, to foreclose mechanic’s lien action exists, no and the evidence fails' to show determines that lien the court the materialman and the property of contract between any privity to render de owner, personal judgment'against no authority has Scott, 4; Texas, lien. v. 46 for the amount Waldroff fendant 395; International N. R. 1 Civ. & G. Hovey, App., Hawkins v. Texas Texas, Hutchins, 123; Trentine, 1 v. 54 App., R. Co. v. Texas Civ. Sens Ind., E., 859; Colshear, Faulkner v. 39 220; Green v. 11 N. Sprague, Y., 643; Beach, 79 N. 201; Pac., Hildebrandt v. 30 v. Meyer Savage, 409; Fosteran, Y., 567; 75 N. Haltzell 35 Burroughs Hynes, v. v. Y., Rust, Mo., 325; 482; Hassett v. 64 56 N. Mo., Schreyer, Hubbell v. McConnell, Ind., v. 604; McCarty, 496; 78 Hardware McGrew Co. v. v. Sou., 25; 40 768; Co., Willverding Farrell v. Lumber N. 14 W. Rep., 308; Offineer, Rep., 592; Black, Rep., 54 N. W. Gilliam v. 40 Pac. Mo., 1078; 57 Peters, 33 Pac. v. Rep., Schmeiding Ewing, Mentzer v. 78; 441; Mo., 12 Billson, Kan., 568; Porter, v. Williams 51 Hodgson v. Pac. Y., 259; Wakeman, Rep., 923. 31 N. 28 Libby, v. Eisenbers v. Donnelly homestead on which material used 2. The no effort or defendant, children, pretense and and there was wife fix a lien on a lien in manner to fix on the required to and homestead, lien existed on the and the court found no property, no in this finding. evidence conflict with there ac having court for defendant in error. The trial Byers Byers, from of deciding of the case for the purpose jurisdiction quired of his to a foreclosure whether or no was entitled plaintiff evidence juris defendant, acquired the property materialman’s alleged judg and had render authority all purposes, diction material furnished the value of the defendant for ment against than less amount was though in the even improvements, used Ablo District on the Court. alone, confer would, standing jurisdiction Bank, 4 Ct. Texas Rep., wich v. used in been having error furnished defendant material error, erected for the plaintiff in the contractor improvements writing (as in error notified having plaintiff defendant in error material that he had furnished such of the fact by statute) required and- contractors, in the erection of such building, used thereof, and it further that at time such appearing value had in his hands contractor error due the plaintiff was served material, due defendant error for of the amount far excess or the purchasers, rights lienors, of innocent of other in the absence McLaughlin. 451 Muller v. Í90b.] the value rendered error for plaintiff was properly Stat., 3305, 3306, 3308; so furnished. Rev. arts. material 752; 55 Riter v. 48 Co., S. W. Houston Oil v. Delauney 167; v. 89 760; Mills, Texas, Bassett v. 89 Strang Pray, W. Rep., S. Texas, 527; 511; Co., Texas, Johnson v. Amorilla Bank v. Impl. Texas, 80; Padgitt Co., Texas, 628; Taylor, 91 Construction Texas, Longmoor, Fullenwider GILL, The firmof sued McLaughlin & Co. John H. Muller to enforce a and lot materialman’s lien house $71, named, defendant the sum service alleging recover of notice at a time he when owed sum sufficient to plaintiff’s cover claim. Defendant allegations answered *3 denying and averred that the on the plaintiff which lien was sought be fixed court, was homestead. The sitting without jury, gave plain tiff a for personal judgment claimed, the sum held that there but was no lien. Defendant has and claims here that in appealed no event could there be personal him, judgment against and no lien established being should been for judgment have defendant. Briefly stated the facts are as follows: The the was home- stead of defendant. He entered into written contract with Munson & Co. to erect a house thereon. The Ben Mounds employed contractors as a subcontractor to do certain of the as parts work. Plaintiffs ma- terialmen furnished Mounds certain $71 material to the value of which actually used the of construction the Plaintiffs house. served upon defendants a written statement of the material thus furnished but nothing did further toward fixing their lien. At the time the notice was served defendant had funds due ample the contractor. He afterwards settled with full, the contractor in not withholding any to plaintiff, sum for but took a bond from the contractor him indemnify this or other of claim laborers or material- any
men. suit This is being defended in behalf of and at the of expense others than defendants. admitted that Defendant of home- plea stead not good against would be the contractors. The case seems to 3305, come within provisions the articles 3306 the and 3307 of Revised Statutes as construed our courts. The first by article above cited provides notice the as this given case. second The declares that liability may of the owner thus be fixed. The third the owner such to furnish the con- requires case tractor served, event, account thus if copy which contractor does not within ten days owner written notice that give claim, he will contest the may the owner it when it due. In pay falls Delauney 55 S. W. exact was ruled point contention here. plaintiff’s We are opinion the should it is so judgment affirmed, be and ordered.
Affirmed. Appeals Reports, 452 Yol. 37. [December, Texas Civil rehearing. On motion GILL, At aformer day this term the judg court, in this case was affirmed our ment by briefly reasons being in an then stated filed. A careful consideration of the motion for has convinced rehearing that our erroneous. It is us conclusion was well established as a gen mechanic’s, rule-that the holder of a eral laborer’s or materialman’s is not force of that to a by fact alone entitled judgment against Scott, Texas, 4; the owner of the Tren Waldroff Sens v. property. Texas, tune, 54 In of this not unmindful of appeal we were its existence. disposing affirmed the that We had at least a ground appellees lien at the time served the owner upon potential and 3307 of the that reason under articles Revised Statutes of a somewhat in the nature writ operated upon granishment funds as were due contractor owner at of service date Longmoor, Texas, of the notice. Fullenweider v. error out of a grew pleadings Our misapprehension facts the statement and the brief brought testimony into that the owner had entered a written contract with would not which the homestead plea prevail. is in as that The situation fact follows: The court found specifically finding were homestead there was no lien. This premises and must as true. cross-assignment is not assailed be treated *4 the of not by head a and the contract was family signed owner was true, This it is not the facts of being possible his wife. under or those that act could either the contractor by case any subsequent It is further under a lien the acting acquire against property. him al- no to the of homestead and that made appellee response plea true notwithstanding lien no would have entitled him to a facts which leged of homestead hence plea homestead character of the the property, the The brought. the as a defense to action established was complete if debt which could to the contractor was simple of the owner liability materialmen claims of subcontractors and the subjected have been had sort any is that pretended It not garnishment only. appellee with the owner. of contract lien under under constitution had a they that the contend Appellees of the of homestead character reason the shown, though by the facts to the proposition. can not accede unenforceable. We it was property those except the homestead upon no liens allows constitution The way. prescribed in a created which upon owner of property Personal judgments when contract, allowable of of are, in absence exists privity lien 446 and 447. Liens, Mech. secs. Phillips statute. authorized of art. 3304 that as under on the former hearing of We were executed between duly contract Revised Statutes home- lien upon as to create a in such form original acting mechanics, laborers and materialmen of to the benefit inured stead at work, potential had least appellees in furtherance it under Gray Pettey.
Hubbard & of at of service the date notice upon owner and in view that we held that the case of Delauney v. S. W. inwas is It clear to our minds that were not appellees entitled to their per- sonal the absence judgment potential at least lien at the date service the owner. upon That the lien must be existent is ruled Fullenweider v. Longmoor, Texas, 484, “If saying: the court the owner of the is in- notice, debted to the contractor the service of the if followed acts fix the lien required secures fund as does a writ of garnish- ordinary ment an case.” It is clear upon that in principle authority the absence privity of contract right personal judgment under the is statute de- pendent least to a lien. upon right at No such lien shown being and none such as if being alleged found to be homestead, distinctly and the court having found that the property defendant, homestead or it follows that the can not judgment stand. The motion rehearing granted. of the trial court reversed and the cause remanded. Granted. Reversed and remanded. Gray Pettey. v. F. W. Hubbard Decided December Money—Payment by
Contract to loan Check—Insolvent Bank. n agreed plaintiffs Defendant to loan sum on their note bank, pursuance indebted to gave his private which, thereof check on a the owner of being him, agreed had to honor it and receive credit on his indebtedness. presented placed Plaintiffs credit, the check and asked that be to their which was done. The bank was insolvent at the time and closed its days doors two afterwards, but the testified that he had sufficient banker funds of his own on pay hand to the check and requested. Held, would have if done so plain- depositors tiffs became with the bank to the amount of the check and defend- complied ant money. contract to loan the Appeal from the District Court Rusk. Tried below Hon. before Levy. Richard B. *5 Turner,
J. R. and H. Arnold J. appellants. Morris,
Gould & for appellee. PLEASANTS, This suitwas brought by ap As pellants against appellee. cause action plaintiffs’ petition about the December, substance that 1st of alleges 1902, appellee $1,200 on agreed to advance them or January 1, provided would execute and deliver to him their note they amount with security and at the rate good that bearing percent annum; per interest complied they agreement with their and executed and delivered to 1, 1903, appellee January their note for sum above stated with