Houseman v. Guaranty Securities , 293 S.W. 304 ( 1927 )

Appellee recovered a judgment for $943.25 against Clarence Houseman and others. Based thereon, writ of garnishment was issued and served upon the Central National Bank of Dallas. The bank answered, admitting an indebtedness of $811.47 to Houseman and negativing any other liability. Houseman gave a replevy bond, with Dr. Guy F. Witt and another as sureties, which recited the issuance and service of the writ, and then proceeded:

"And whereas Clarence Houseman, defendant, claims that he does not own or claim any part of the funds or money in the hands of the Central National Bank, but that all of said moneys belong to and are the property of Dr. Guy F. Witt and were merely placed in the bank in the name of the said Clarence Houseman, as the agent and representative of the said Witt, and that he therefore, as such agent and for the benefit of his said principal, desires to replevy any effects, debts, shares, or claims of any kind seized or garnished under and by virtue of said writ of garnishment:

"Now, therefore, in order to release from the lien of said writ any and all debts, claims, shares, and effects, if any, owing by and in the possession of the said Central National Bank, and belonging to the said Clarence Houseman, as trustee and agent for the said Dr. Guy F. Witt at the date of service of said writ, and which may be owing by him or shall come into his possession up to the time of filing his answer as garnishee in said cause, we, the undersigned Clarence Houseman, as principal, Guy F. Witt and Homer Donald, as sureties, acknowledge ourselves bound to pay to the said Guaranty Securities Company, the sum of $1,880.50, conditioned for the payment of any judgment that may be rendered against the said Central National Bank, as garnishee."

Houseman answered, controverting the answer of the garnishee. He alleged the fund in controversy belonged to Dr. Guy F. Witt and was turned over to him (Houseman), as Dr. Witt's agent, to be used and paid out for the latter's benefit.

Dr. Witt intervened, setting up the same facts.

The appellee replied to the pleadings of Houseman and Witt that, by the execution of the replevy bond and withdrawal of the fund from the garnishee, they were estopped to deny that the money belonged to Houseman.

The trial court sustained the contention of appellee and rendered judgment accordingly. Houseman and Witt appeal.

All question as to the correctness of the trial court's ruling is foreclosed in its favor by Davis v. McFall (Tex.Civ.App.) 168 S.W. 453, and Bank v. Sanborn (Tex.Civ.App.) 169 S.W. 1075.

In the first-cited case the principal defendant, W. C. McFall, replevied the garnished fund giving bond with J. M. McFall as one of the sureties. The bond recited that W. C. McFall desired to replevy the fund for the reason that:

It "is not the property of the said W. C. McFall, but belongs to one J. M. McFall."

J. M. McFall intervened in the garnishment suit, claiming the money as his own and that W. C. McFall held it in trust for him. It was held that W. C. McFall and his surety, J. M. McFall, were both estopped to deny the money belonged to W. C. McFall, and judgment was rendered in favor of the plaintiff in garnishment. This case is directly in point. A writ of error was refused.

In Bank v. Sanborn (Tex.Civ.App.) 169 S.W. 1075 (writ refused), the same ruling was made, but in this case there were no recitals in the bond asserting ownership of the fund to be in any one other than the principal defendant.

In further support of the Judgment rendered herein, see Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S.W. 30.

Affirmed.