Nelson v. Winters State Bank , 1911 Tex. App. LEXIS 1052 ( 1911 )

KEY, C. J.

Bedford & Odell, a mercantile partnership, brought suit against one Warren S. Butler, and sued out a writ of garnishment against the State Bank of Winters. The bank, as garnishee, answered, admitting that it was indebted to Butler in the sum of $147.25, the balance of a sum collected by it upon a note held as collateral security for an indebtedness of Butler to the bank. J. Y. Nelson filed a plea of intervention, alleging that the bank was not indebted to Butler, and that the money held and admitted by it to belong to Butler did not belong to him, but to intervener Nelson. The trial court dismissed the plea of intervention, and rendered judgment against the garnishee bank, and intervener Nelson has appealed, and assigned as error the action of the trial court in dismissing his plea of intervention.

We overrule the assignment and affirm the judgment. We do not think plaintiff in error’s petition showed that it was necessary for him to intervene in order to protect any right of his. In answering the writ of garnishment, the bank made an absolute and unconditional admission of its indebtedness to Butler, and that admission entitled Bedford & Odell to judgment against the bank, regardless of any claim the intervener may have also had against the bank. If plaintiff in error is correct in his contention, and the bank was in fact indebted to him, or he was entitled to the excess which the bank admitted belonged to Butler, the judgment in this ease will not preclude him from maintaining an action against the bank; and we do not think the trial court abused its discretion in refusing to permit him to litigate that question in this case.

Judgment affirmed.