Wilson Hardware Co. v. Duff , 98 Tex. 467 ( 1905 )

The applicant for the writ of error brought suit against F.J. R.C. Duff to recover the sum of $1000. The cause of action alleged was that the defendants had received that sum of money belonging to one Sims, and that the plaintiff was the holder of two drafts drawn by Sims upon them for the money. It appears also that the money received by the Duffs was received for Sims in a suit against the Texas New Orleans Railway Company. McFadden, Weiss Kyle, having brought suit against Sims to recover an alleged debt amounting to $2200, sued out writs of garnishment and had them served upon both the railroad company and upon the Duffs. The latter answering the suit of the Wilson Hardware Company admitted that they held the money collected by them for Sims; and prayed that the garnishing creditors be required to come into the suit, to the end that the right to the fund be determined as between such creditors and the hardware company. Thereupon, as vaguely appears from the proceedings as shown by the transcript, there was some kind of a consolidation of the garnishment proceedings, with the suit of the hardware company against F.J. R.C. Duff. A trial was had as between the hardware company, the Duffs and McFadden, Weiss Kyle, the garnishing creditors, which resulted in a decree declaring the Duffs stakeholders and requiring them to pay the $1000 into the registry of the court, and adjudging that McFadden, Weiss Kyle had acquired a prior lien upon the fund for such sum as they might thereafter establish against Sims in their suit against him. The decree further continued the cause as to all parties except the Duffs.

Now if this is to be treated as a judgment in the case of the hardware company against the Duffs only, then we have no power to review the proceedings, because that suit was for $1000 exclusive of interest and might have been brought in the county court. Rev. Stats., art. 996. If the hardware company's suit is to be treated as linked with the suit of McFadden, Weiss Kyle against Sims, which could only have been brought in the District Court, then for the reason that there was no final judgment in that suit neither the Court of Civil Appeals nor this court has jurisdiction of the case.

The application for the writ of error is accordingly dismissed for want of jurisdiction.

Application dismissed for want of jurisdiction.