Mutual Home Ass'n v. Zwatchka , 1927 Tex. App. LEXIS 566 ( 1927 )

BUCK, J.

John Zwatchka filed suit in the justice court against I. B. Finley, whose residence was alleged to be unknown, and the Mutual Home Association, a corporation whose principal office 'and place of business was alleged to be in the city of Fort Worth. Plaintiff alleged that there was on deposit with the Mutual Home Association the sum of $114.84, which sum had been deposited under the name of I. B. Finley as a sinking fund on the Lucy Bunnells note, which note was held by .Lucy Bunnells, and that said sum was the property of, and belongs to, said plaintiff, and that some claim was being made by the said Finley; at least the said Mutual Home Association had refusedl to turn over and deliver to plaintiff said sum of money. Plaintiff asked that citation issue to said I. B. Finley by publication, and that citation issue to the Mutual Home Association,'hereinafter called association, and that upon final hearing plaintiff have judgment for the said sum of $114.84. In his affidavit for citation by publication, plaintiff alleged that the residence of I. B. Finley was unknown to him. The justice court found that' Finley’s residence was unknown to the court and to plaintiff, and that he had been duly cited by publication for the time and under the law required to appear and answer said cause, and that David W. Stephens, an attorney, had been appointed to represent the defendant Finley, and further found that plaintiff was entitled to judgment against the association for the sum of money alleged to have been deposited with the association, and gave judgment for plaintiff for said sum of money, and further provided that plaintiff have judgment against I. B. Finley. The court further found that the sum of money sued for had been deposited in the form of a good and valid check and in the sum of $120.25, but the defendant had asked that it might withdraw said deposit, and said request had been granted.

Upon appeal to the county court, that court rendered judgment for plaintiff for the $120.25, together with interest from date of judgment and the costs of suit, including 10 per cent, attorney’s fees allowed the attorney for representing Einley against the association, and further provided that the payment of the above amount to plaintiff by defendant association- should forever bar any right or claim of defendant Einley as against- said association for or to said amqunt so paid to plaintiff.

In the statement of facts appears, what purports to be the pleadings of the plaintiff, in which plea it is alleged that the plaintiff and defendant Finley made an oral agreement, hy the terms of which a certain sum of money was to be deposited and held by A. Arneson, manager of the defendant association, which sum of money so deposited was to secure the payment of the note known as the Lucy Runnells note; that the money held by A. Arneson, manager of the association, and the association itself, acting through its manager, is the property of plaintiff, and that he is entitled to the possession of the same, and has on divers occasions demanded the same, but the said defendant association has refused and now refuses to turn over and deliver to plaintiff said money or any part thereof; that the defendant association had tendered into the justice court, precinct No. 1, Tarrant county, Tex., the sum of money so deposited with the assóciation, and afterwards withdrew said sum from said court, but does not now and never has made or laid any claim to said sum of money or any part thereof; that the plaintiff, under the agreement made by and between him and the said defendant Finley, is entitled to the-possession of said money; and that said association is contesting the payment of said money or the delivery of the same to the plaintiff. In this pleading the plaintiff alleges that defendant I. B. Finley is a “nonresident of the state of Texas,” and no personal judgment could be taken, but plaintiff seeks judgment for the possession of the money.

Opinion.

Counsel for appellant, joined by counsel for defendant Finley, who is not a party to the supersedeas bond, presents a brief showing studious examinations of authorities, in which they contend that, since the residence of defendant Finley was alleged in the original oral pleading of plaintiff in the justice court to be unknown to plaintiff, and in the pleading in the county court said defendant. Finley was alleged to be a nonresident, and since the facts show that, if any sum of money had been deposited by Finley with the defendant association, the relation of debtor and creditor was' thereby created between the association and Finley, no specific sum of money was involved, that therefore plaintiff’s only remedy, if he had any, was to plead the right of subrogation to any right held by Finley against the association, and that he was not entitled to recover on the pleadings, made in either the justice court or in the county court. A number of authorities are cited bearing upon this question, including the well-known case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, in which the Supreme Court of the United States, in construing a statute in this state, held that no personal judgment could be had against a nonresident, cited by publication or personally, while out of the state; the case of McDonald v. Mabee, 243 U. S. 90, 37 S. Ct. 343, 61 L. Ed. 608, L. R. A. 1917F, 458, in which was reversed the Supreme Court of Texas, in an opinion published in the 107 Tex. 139, 175 S. W. 676; Banco Minero v. Ross & Masterson (Tex. Civ. App.) 138 S. W. 224, by the Court of Civil Appeals, same case 106 Tex. 522, 172 S. W. 711, by the Supreme Court; Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295.

But we think that, by the deposit in the justice court of the sum of money claimed by plaintiff as against the defendant association, said justice court acquired jurisdiction of a cause of action in rem against the money itself, and, having acquired jurisdiction, it did not lose it by the subsequent withdrawal of the money by the defendant association. The court, having acquired jurisdiction to try and decide a cause of action pleaded, retains said jurisdiction to try and determine the cause, even though the defendant, who has filed his answer and made his appearance, may withdraw his answer. Loeb v. Crow, 15 Tex. Civ. App. 537, 40 S. W. 506, writ of error denied; 93 Tex. 645; Wilson v. Zeigler, 44 Tex. 657; Field v. Fowler, 62 Tex. 65; 7 R. C. L. § 79, p. 1045; and numerous other authorities.

Jurisdiction of a suit against a nonresident of a state may be acquired by garnishment, attachment, or sequestration of property owned by the nonresident defendant. Where the property involved is tendered id court and submitted to the court’s control and jurisdiction, such action has the same effect as the court’s possession by garnishment or attachment, etc. Therefore the justice court and the county court had jurisdiction to render a judgment in rem against the property involved in this suit, and to further protect the defendant association against any claim which the nonresident might afterwards make against it for said property.

Therefore we conclude that all assignments should be overruled, and the judgment affirmed.