Bradshaw v. Smith , 130 Tex. 180 ( 1937 )

In the case at bar the opinion of the Court of Civil Appeals at Dallas holds that the fees of office of a constable which have been collected by him and deposited to his credit in a bank are subject to garnishment by his judgment creditor. Smith v. Bradshaw, 105 S.W.2d 340. On the 7th day of July, 1937, we dismissed for want of jurisdiction the application for writ of error filed by the constable. The application is again before us, on motion for rehearing. An examination of the opinion in this case shows that it is in direct conflict with the opinion of the Fort Worth Court of Civil Appeals in Smith v. Oak Cliff Bank Trust Company (99 S.W.2d 1103), wherein it was held that the fees of office of a constable which had been collected by him and deposited to his credit in a bank were not subject to garnishment by his judgment creditor. We are in accord with the holding of the Dallas court in the present case. Our order on this application, therefore, should have been one of refusal, and not of dismissal for want of jurisdiction. We, therefore, here now overrule the holding of the Fort Worth Court of Civil Appeals in the case above mentioned, and approve the holding of the Dallas court.

The motion for rehearing filed herein by D. A. Bradshaw, Constable, is in all things overruled.

Opinion adopted by the Supreme Court July 28, 1937.