Smith v. Oak Cliff Bank & Trust Co.

DUNKLIN, Chief Justice. The-decision Of the trial court, challenged here by appellant, to the effect that the constable’s fees of office were not subject to garnishment, is well supported on grounds of public policy so well expressed in National Bank of El Paso v. Fink, 86 Tex. 303, 24 S.W. 256, 40 Am.St.Rep. 833, and Sanger v. City of Waco, 15 Civ.App. 424, 40 S.W. 549 (writ of error refused). The further holding that the interests of others in the funds impounded, which the constable had no right to retain, and which would be lost to' them by application of the whole to the satisfaction of the individual debt of D. A. Bradshaw to plaintiff, was likewise well supported upon just and equitable principles and by authorities pertinent thereto. > The mere fact that the( deposit was not made in the county depository as required by article 1656a, Vernon’s Ann.Civ.St. but in the garnishee bank, and there intermingled with his own funds, did not of itself, as ¡insisted by appellant, constitute a- conversion of that portion of the funds-which belonged to others and thereby make-the whole subject to the writ, especially since the constable still holds the same for their benefit, and not to his individual credit, the deposit being to the credit of “D. A. Bradshaw, Constable.” This announcement in 28 C.J. p. 117, is abundantly supported by authorities, there cited: “Money» of another deposited by defendant in his own name cannot be reached by garnishment as the property of defendant. This rule is based upon the doctrine that in garnishment the equitable-title to the property sought to be reached will prevail over the bare legal title, and is-especially applicable to deposits of trust funds, and deposits by agents, and public-officers.” Also the following in section 163, page 119: “Property held in trust by de- • fendant is not subject to garnishment for-his debts, no matter how completely defendant may have exercised apparent ownership over it, unless it was upon the assumption of such ownership that the credit was given. A bare legal title in defendant is insufficient where the equitable or beneficial interest is in another.” Accordingly, the judgment of the trial-court is affirmed.