Tirrell v. Canada, 25 Tex. 455

Tirrell v. Canada

25 Tex. 455 | Tex. | 1860

Bell, J.

On the 26th day of November, 1858, the appellants recovered judgment against S. Gr. Parsons for the sum of five hundred and sixty-three dollars and seventeen cents. On the 20th of September, 1859, the attorney for'the appellants made *458the necessary affidavit to obtain a writ of garnishment against the appellee, J: J. Canada. We infer from the statement of facts and the pleadings that this writ of garnishment was served on Canada on the said 20th day of September, 1859. Canada answered the writ of garnishment, and stated in his answer that he had for collection as agent, on the day of the service of the writ, certain notes and accounts, which had been placed in his hands by S. Gr. Parsons, and for which he had executed receipts, in which he promised to account for the notes and accounts “to the receipts.” Canada’s answer stated that he had no money on hand belonging to said Parsons at the time the writ of garnishment was served on him; but that at the time of filing his answer he had collected the sum of two hundred and nineteen dollars and ninety-four cents, besides his commissions, which amount he then had in his possession. He also stated that since the service of the writ of garnishment on him, and before the collection of the money, he had been notified that his receipt to Parsons, embracing all the claims mentioned in his answer, except one for the sum of fifteen dollars and seventy-seven cents, had been transferred to Wm. M. Rice & Co.; and he prayed that said Rice & Co. be made parties, and that the court would determine to whom he should make payment of the money in his hands. Rice & Co. interpleaded; and upon the trial it was proved that the receipts of Canada to Parsons were transferred by Parsons to Wm. M. Rice & Co., on the 21st day of September, 1859; and that on the day before, (which was the same day on which the affidavit for the garnishment was filed,) the agent of Rice & Co., who received the transfer of the receipts, was informed by the sheriff of the county that the writ of garnishment had been sued out and served on the garnishee, Canada. The judgment of the appellants against Parsons was read in evidence. It was also shown that Rice & Coi had recovered a judgment at the Spring Term, 1859, againt S. G. Parsons for eleven hundred and two dollars and twenty-three cents, and the sheriff of the county had been instructed by the agent of Rice & Co. to return an execution which had issued on said judgment— the agent informing the sheriff that he had the receipts of Canada.

The cause was submitted to the eourt without a jury, and judg*459ment rendered for the appellants for fifteen dollars and seventy-seven cents, and for Rice & Co. for two hundred and three dollars and seventeen cents. The judgment does not exhaust the sum in the hands of the garnishee, but leaves one dollar not disposed of. This was doubtless an inadvertence not worthy of any consideration here.

We are of opinion that there is no error in the judgment of the court. The law is well settled, that one who has in his possession promissory notes or other choses in action of the defendant in attachment, or, as in this case, of the defendant in a judgment, cannot, in respect thereof, be charged as garnishee. (See Drake on Attachments, § 481, and the numerous cases cited in the note; Sayles’ Practice, § 336.) In the present case the answer of the garnishee shows, that at the time of the service of the writ of garnishment on him, he had no money in his hands belonging to S. G-. Parspns. He had only notes and accounts for collection. These notes and accounts were transferred by Parsons to Rice & Co., and Rice & Co. were entitled to receive from Canada the amounts collected by him upon the notes and accounts embraced in the receipts which had been transferred by Parsons to them. It was proper to give judgment in favor of Tirrell & Co. for the fifteen dollars and seventy cents, because that was money in the hands of the garnishee, at the time of his answer, belonging to Parsons, it being an amount not embraced in the receipts transferred by Parsons to Rice & Co.

The judgment of the court below is affirmed.

Judgment affirmed