J. H. Simpson & Co. v. Grinnan & Duval

Opinion.— The testimony was sufficient to support the judgment as to the ownership of the funds, and the garnishee proceedings. The allegations in the answer of J. H. Simpson & Co. were also sustained by testimony, except that the proceedings in the New York suit were only proved by parol, over objections of plaintiffs, and no details of its proceedings given. Simpson & Co. bring the case by' writ of error to the supreme court, assigning many errors, but substantially that-the judgment does not protect the defendants against a second judgment for the same money; and that the facts did not show funds in their hands subject to the judgment, and that proper proceedings ivere not taken to reach the fund. The second and fifth assignments resist the right of Grinnan & Duval to recover, because the funds were not reached by the writ of garnishment. The facts seem to have been fully stated in the pleadings. It was shown that Simpson & Co. had been garnished in suit No. 3,369, of Grinnan & Duval v. Winter & Coit; that in the answer to the garnishment, and in their answer in this suit, No. 3,364, of Harris & Co. v. Patchen and Simpson & Co., they, Simpson & Co., had set up the facts and had asked that the several parties, naming them, should be required to interplead and settle the question of ownership. This request was substantially met by Grinnan & Duval intervening; and it was adjudicated that (1) Simpson &Co. had [141] the fund; (2) that Patehen and Ilarris & Co. and Grinnan & Duval were each claiming it; (3) that Grinnan & Duval were entitled to the fund. This settled all disputes and afforded Simpson & Co. the protection they asked. Iglehart Moore, 21 Tex,, 504, and cases cited. The third assignment insists that the draft in Patchen’s hands could not be reached by garnishment of Simpson & Co, The rule as to garnishment of the maker of a promissory note is given by Mr. Sayles: “The maker of a negotiable note cannot be charged as garnishee of the payee of a note before its maturity; and he cannot be charged as such after its maturity unless it be affirmatively shown that at the time of serving the writ the note was the property of the payee.” Sayles' Prac. (2d ed.), sec. 396; Barrett v. Goldthwaite, 22 Tex., 234, Here it was affirmatively shown that Patehen, the payee, was still the holder of the draft; also that Winter’s money was taken without his consent from his safe and used in the purchase of the draft; Coit, who obtained it and sent it to Patehen, was also party and concluded in the suit. The draft had been dishonored and the funds retained for investigation. Under the most stringent rule the pleadings set up facts authorizing the condemnation of the funds to the judgment of Grinnan & Duval, 3, The sixth assignment is: That “the pleadings and evidence show that previous to the institution of this suit Patehen had sued Simpson & Co. in Hew York and had stopped funds in Swenson’s hands; that they were parties to the suit, duly served with citation; that it was a proceeding in rem, and that the courts of Texas could take no jurisdiction over the funds sued for in Hew York. They contend that either this suit should be delayed until the result of the Hew York suit was known, or a conditional judgment rendered depending upon the result of that suit.” The answer to this is, that no such relief was asked in the court below. [142] The full prayer of Simpson & Co. is: “And these defendants ask for the protection of the court so that no second recovery can be had against them; that the parties who are claiming the money, to wit, the said S. W. Patchen, and the said J. L. Harris & Co., plaintiffs in this suit, and the aforesaid Grinnan & Duval, plaintiffs in Ho. 3,369, now pending in this court, be compelled to interplead, and that it be determined, by judicial investigations, to whom said funds properly belong, for the protection of these defendants, who have acted in good faith and without taint of fraud or wrong. And these defendants ask that they also recover all costs; and as they are in no wise to blame, and are in court without just cause, that they be allowed to recover against the fund in their hands suitable attorney’s fees for payment of counsel, whom they have been compelled to employ in this cause and in the Grinnan & Duval Case above named.” While there was no formal interpleading, yet Grinnan & Duval, by leave of the court, intervened, setting out the facts relied on by them. This has been held equivalent to interpleading where law and equity are administered in separate courts. Iglehart v. Moore, 21 Tex., 504, and cases cited; Taylor v. Gillean, 23 Tex., 517. Appropriate pleadings were on hie. It was “ determined, by judicial investigation, to whom the funds belonged.” As requested, out of the funds said by them to be “in their hands,” they were allowed to retain their expenses and attorney fee. They contemplated on such adjudication that the fund would be taken from their hands. They asked no postponement or action protecting against the suit in Hew York. Had there been appropriate averments, sustained by testimony, showing a necessity of protection against the proceedings in Hew York, and it had been refused, there might be grounds of complaint if exceptions had been taken below. The case below seems to have been disposed of to the satisfaction of Simpson & Co. at the time. [143] 4. The seventh assignment urges that the court did not extend proper protection to Simpson & Co., who were innocent stockholders. They had all they asked. 5. The fourth and eighth assignments question the sufficiency of the pleadings and evidence to show that any funds were in the hands of Simpson & Co. In this their prayer is a sufficient answer. It requested that they be allowed to retain expenses out of the fund in their hands. 6. The first and ninth assignments are general, pointing out no error, and will not be noticed. The parties may be in danger from the proceedings in the Hew York courts, but the pleadings do not present this question for revision. Finding no error in the record, the judgment should be affirmed.