Winfield State Bank v. First Nat. Bank of Winfield , 1916 Tex. App. LEXIS 1150 ( 1916 )

We are of opinion it appeared as a matter of law that appellee was indebted to Fuquay in the sum of $666.88, and that the trial court erred when, instead of rendering judgment in appellant's favor for that amount, he rendered judgment in its favor for the sum of only $1.88. It is not necessary to inquire whether under the circumstances of the case appellant might, after the service of the writ on it, lawfully have paid the checks Fuquay had drawn on it out of the proceeds of the Cook check, then to his credit with it, or not (House v. Kountze,17 Tex. Civ. App. 402, 43 S.W. 561; Neely v. Bank, 25 Tex. Civ. App. 513,61 S.W. 559; Bank v. Moline Plow Co., 168 S.W. 420; Bank v. Davis,149 S.W. 290; McBride v. American Ry. Lighting Co.,60 Tex. Civ. App. 226, 127 S.W. 229; Elliott v. Bank, 135 S.W. 159); for, as is shown by testimony referred to in the statement above, it conclusively appeared it did not pay same out of those proceeds, but, instead, paid them with money it loaned to Fuquay on the note made by him and his father to it. Appellee's contention that $665 of the $666.88 to Fuquay's credit with it at the time the writ was served belonged to Cook, and not to Fuquay, is believed to be unsound. When Fuquay, at Cook's request, gave his own checks in payment for the mules, he became liable to the respective holders thereof, and Cook became liable to him for the amounts thereof. When Cook gave Fuquay the check on Ft. Worth for $1,615, he paid a debt he owed to Fuquay, and the proceeds of the check belonged to him, and not to Cook.

Appellee's counterassignment, attacking the sufficiency of the writ of garnishment to require it to answer, is believed to be without merit, and therefore is overruled.

The judgment will be so reformed as to adjudge a recovery by appellant against appellee of $666.88, instead of $1.88, and, as so reformed, will be affirmed.