Alexander v. Berkman

3 S.W.2d 864

• Court: Court of Appeals of Texas
• Decided: December 22, 1927
• Docket: No. 609.
• Status: Published

Opinions

GALLAGHER, C. J.

The First National Bank of Waco, one of the appellees herein, sued Mrs. Ray W. Goldberg, Sophia Goldberg, and Ida Mae Bornstein (née Goldberg), and her husband, Stanley L. Bornstein, on a promissory note for the principal sum of $1,215, with interest and attorney’s fees alleged to have accrued thereon. A writ of garnishment was sued out in said cause against appellee Berkman individually and as independent executor of the estate of Mary G. Goldberg Thomas, deceased, and served on him on the 12th day of September, 1925. Said writ commanded said garnishee to appear on the 5th day of October, 1925, the same being the first day of the ensuing term of said court, and answer what, if anything, he was indebted to said several defendants both in his individual capacity and, as executor of said estate. Since the indebtedness of the garnishee to Mrs. Bornstein is the only issue involved in this appeal, further reference to the other parties defendant in the original suit may be omitted.

The garnishee filed his answer in said cause on October 6, 1925, appearance day of said term. In said answer he denied being individually indebted to Mrs. Bornstein in any sum whatever. He further answered that Mrs. Bornstein, on September 8, 1925, in a certain cause entitled Ida Mae Goldberg et al. v. J. Berkman et al., pending in said court, and numbered 27441 on the docket thereof, recovered a judgment against him, the said garnishee, as independent executor of the estate of Mary G. Goldberg Thomas, deceased, in the sum of $1,000, and made the judgment in said cause a part of his said answer. He further set out in said answer that motion for new trial in said cause had been' filed and overruled on October 3, 1925, and that notice of appeal had been given by Morris Thomas, one of the parties to said suit. The original petition in said cause No. .27441 shows that the same was a suit brought by Mrs. Bornstein and husband and other legatees under the will of Mrs. Thomas, against said Berkman as independent executor of said will and the remaining legatees thereunder, and against Morris Thomas, the surviving husband of said testatrix, for partition and distribution of her estate. The answer of the defendant Berkman in said cause made the will of Mrs. Thomas, a copy of which was attached thereto, a part thereof. The will of said Mrs. Thomas was made by her while she was Mary G. Goldberg and before her marriage, to said Thomas. By the terms thereof she bequeathed ,to Mrs. Born-stein and thirteen others specific legacies amounting in the aggregate to $8,000. She bequeathed the residue of her estate to the Congregation Agudath Jacob, a religious corporation. Said answer showed that the entire estate which came into the hands of said executor consisted of seven promissory notes, the principal of which aggregated the sum of $8,687.50. Said answer further showed that said executor had collected two of said notes and various sums of accrued interest on all of the same, and that, after paying all costs and expense of administration, he had on hand in cash the sum of $2,465.92 and five, of said notes still uncollected, the principal of which aggregated $6,687.50. Said executor in said-answer further stated that he was willing that the estate remaining in his hands be partitioned among the parties entitled thereto, and asked the court to determine the several parties entitled to said funds and to order the same distributed according to their respective interests. He further stated that it was impossible to partition said notes in kind, and recommended that they be sold and the proceeds thereof partitioned. He further alleged that the defendant Morris Thomas was claiming some interest in the property in his hands, and asked that such claim be canceled. He further asked that Ms account as executor be approved, that he be allowed certain additional compensation, and that he be discharged from his trust. The pleadings of said Thomas are not found in the record, and the nature of his claim is not specifically stated, though the assertion of a claim on his part was also alleged by the plaintiffs in said suit.

The judgment of the court in said cause No. 27441, made a part of the garnishee’s answer in this cause, recited that the several parties to said suit appeared ⅛ person or by attorney, and that said Morris Thomas, of the state of New York, by his duly authorized attorney, had entered an appearance and filed an answer therein and pleaded to the-jurisdiction of the court, and that said plea was considered by the court and overruled. Said judgment further recited that the court, after hearing the evidence, found that said Morris Thomas had no interest in any of the property or funds in the hands of said executor, and divested him of all right, title, and interest therein and vested the same in said executor in his representative capacity, and canceled all claims asserted by said Thomas in or to any of said property. The court also found that the several parties “to said suit were entitled to receive out of the proceeds of said property in the hands of the executor the respective amounts bequeathed to them by the will of the deceased Mrs. Thomas, and awarded to each of them, respectively, a judgment against the executor therefor. The court further appointed the executor a receiver of said notes, and authorized him as such to sell the same and report his action to the court. The court also, in said judgment expressly approved the acts of the executor. It may be further stated in this connection that said executor, acting as receiver under said order of the court, filed his report of the sale of said notes and the bill of costs incurred by him in making such sale, and the same were on the 3d day of October, 1925, duly approved by the court, and said receiver discharged. Said Morris Thomas, defendant in said cause No. 27441, filed his original motion for new trial therein on September 30, 1925, and his. amended motion for new trial therein on October 3, 1925, which motion was overruled and notice of appeal given on said day, the same being the last day'of that term of the court. Said Thomas in due time perfected his appeal by cost bond, and the judgment of the trial court in said cause was affirmed by this court on the 8th day of April, 1926. 283 S. W. 230. None of the other parties to said suit appealed from said judgment..

Mrs. Bornstein, by written assignment dated September 1, 1925, but not delivered until after the service of said writ of garnishment, assigned $250 of the legacy bequeathed to her by the will of Mrs. Thomas, to appellant James' P. Alexander. Thereafter on the 23d day of March, 1926, she executed another instrument, assigning to appellant Alexander the sum of $360 to be paid out of tbe judgment recovered by ber against said executor in said cause No. 27441. It is conceded that the sum of $260 theretofore assigned to appellant Alexander is included in this latter assignment. Mrs. Bornstein thereafter, on the 27th day of March, 1926, assigned the remaining $650 of said judgment to appellant T. E. Haney. On the 1st day of May, 1926, appellants Alexander and Haney filed their plea of intervention in this cause, in which they set up their respective assignments as aforesaid, alleged that the proceeds of said judgment were not subject to garnishment, and prayed for recovery of the funds awarded to Mrs. Bornstein by the judgment in said cause No. 27441 and still remaining in the hands of said executor, the garnishee herein.

The garnishee on the 8th day of June, 1926, filed an amended answer in this cause, in which he alleged tliat the judgment of the trial court in said cause No. 27441 had been duly affirmed by the Court of Civil Appeals (283 S. W. 230) and that the mandate of said court had been filed in the trial- court on the - day of May, 1926. He made appellants and Mrs. Bornstein and her husband parties to such garnishmept suit, and prayed for service of process upon them and that he be protected from a double recovery.

Appellee bank on June 11, 1926, recovered judgment against Mrs. Bornstein for the sum of $1,473.13. This cause came on for trial in said court on the 5th day of August, 1927. ■ The court having heard the evidence,' rendered judgment in favor of appellee bank against the garnishee J. Berbman as independent executor of the estate of Mrs. Thomas, deceased, in -the sum of $750, and in favor of appellant James P. Alexander against said garnishee for the further sum of $250. Appellant Haney was denied any recovery. Said judgment is here presented for review.

Opinion.

The principal issue to be determined is whether the legacy bequeathed to Mrs. Born-stein by Mrs. Thomas in her will, and after-wards merged into a judgment in her favor against the executor of said will in the decree for final partition and distribution of Mrs. Thomas’ estate, was subject to garnishment either at the time of the service of the writ of garnishment herein or at the time the garnishee filed his answer on appearance- day of the term of court to which said writ was made returnable. Appellants contend that the recovery awarded in said judgment was not subject to garnishment on either of said dates. Appellee bank contends the contrary. Since it is conceded that, if the recovery awarded to Mrs. Bornstein by said judgment was subject to garnishment on October 6,' 1925, the date of the filing of the garnishee’s original answer, the bank’s rights as garnishing creditor attached, it will be sufficient to consider the status of such recovery at that time. Said recovery was part of a judgment approving the final account of the executor, establishing the rights of Mrs. Bornstein and the various other legatees in and to the funds in the hands of the executor, and awarding a recovery against him in'favor of each party entitled to a specific legacy for the amount thereof, as stated in said will, and directing that the same be satisfied out of the funds in the hands of the executor, and awarding the residuary legatee a recovery for any and all surplus funds after discharging such specific legacies so recovered. Said judgment of which said recovery by- Mrs. Bornstein formed a part also adjudicated the claim of Morris Thoinas in and to said funds in the hands of the executor, declared the same invalid, and denied him a recovery thereon. According to the record in said cause No. 27441, the funds in the' hands of the executor, after deducting the expenses and costs of suit incurred therein, were but little more than sufficient to discharge the specific legacies in full. Any substantial recovery by said Thomas would have reduced the amount of the estate in the hands of the executor to such extent as to make payment in full of each of said legacies impossible. It is therefore apparent that, until said judgment be-came final, the amount Mrs. Bornstein was entitled to receive by reason of the legacy so bequeathed to her and her recovery thereon against said executor was not conclusively determined, and the amount he was legally liable to pay her on that account necessarily uncertain.

In order for a fund or liability to be subject to garnishment, -the amount thereof must be capable of ascertainment at least at the time of the filing of the garnishee’s answer. Burke v. Hance, 76 Tex. 76, 13 S. W. 163, 165, 18 Am. St. Rep. 28; Darlington-Miller Lumber Co. v. National Surety Co., 35 Tex. Civ. App. 346, 80 S. W. 238, 240; Waples-Platter Grocery Co. v. Texas & Pacific Ry. Co., 95 Tex. 486, 488, 68 S. W. 265, 59 L. R. A. 353. There must be no condition precedent, no impediment of any sort between the garnishee’s liability and the defendant in garnishment’s right to be paid. Medley v. American Radiator Co., 27 Tex. Civ. App. 384, 66 S. W. 86, 89 (writ refused). Said judgment in cause No. 27441 being subject to appeal at the time of the filing of the garnishee’s answer herein, and an appeal thereafter having been duly perfected, it was not final at the time of the filing of the. garnishee’s answer herein, in the sense that it finally and conclusively determined the right of Mrs. Bornstein to the payment of $1,000, or any other specific sum, out of the funds in the hands of the garnishee as such executor. Our Supreme Court, in Waples-Platter Grocery Co. v. Texas & Pacific Ry. Co., supra, page 489 (68 S. W. 266), held that an uncertain demand, though liquidated and fixed by the terms of a judgment, did not become subject to garnishment until such judgment became final. We quote from the opinion in that case as follows:

“The demand .being uncertain, is not made certain until the amount is fixed by a final judgment of the court — that is to say, a judgment not merely final in the sense that an appeal lies therefrom, but a judgment final in the sense that it has reached that stage in judicial procedure when it can neither be set aside nor reversed upon appeal. In the case of the Texas Trunk Railway Co. v. Jackson, 85 Tex. 605 [22 S. W. 1030] Chief Justice Stayton, speaking for the court,'says: ‘We are of the opinion that an appeal or writ of error, whether prosecuted under cost or supersedeas bond, during pendency deprives a judgment of that finality of character necessary to entitle it to admission in evidence in support of the right or defense declared by it; and from this necessarily follows the insufficiency of a plea in bar based on it.’ In the case of Kreisle v. Campbell, 89 Tex. 104 [33 S. W. 852],’this question came before us upon an application for a writ of error, but, since the judgment was sustainable upon other grounds, we did not find it necessary to decide the point, and its determination was expressly waived. The Court of Civil Appeals for the Second District, however, in that case, held in accordance with our opinion. Same case [Tex. Civ. App.] 32 S. W. 581.”

We therefore hold that neither said legacy to Mrs. Bornstein nor the recovery in her favor in which it was merged was subject to the bank’s writ at the time the ‘garnishee filed his original answer herein. See, also, Burke v. Hance, supra; Kreisle v. Campbell (Tex. Civ. App.) 32 S. W. 581, 582; Dodson v. Warren Hardware Co. (Tex. Civ. App.) 162 S. W. 952, 954; First State Bank & Trust Co. v. Blum (Tex. Civ. App.) 239 S. W. 1035, 1036. Her right to such recovery and the amount thereof did not become certain until said judgment became final by affirmance on appeal.

Appellee bank contends that the rule just announced does not apply in this case because the appeal, from the judgment in said cause No. 27441 was perfected and prosecuted by Morris Thomas alone. We do not think such contention sound. The judgment denying any recovery whatever to Morris Thomas was a judgment in favor of Mrs. Bornstein to the extent that it determined that the funds out of which her recovery was to be satisfied should not be diminished by reason of the claims asserted by him, and in favor of the executor, absolving him from any liability to said Thomas with reference to such funds. Our Supreme Court in the case of Missouri, K. & T. Ry. Co. v. Enos, 92 Tex. 577, 580, 50 S. W. 928, said:

“But where the rights of one party are dependent in any manner upon those of another, it [the appellate court] will treat the judgment as an entirety, and, where a reversal is ré-quired as to one, it will reverse the judgment . as a whole. * ⅜ ⅜ That a judgment against two or more parties which is appealed from by one may be reversed as to the one and affirmed as to the others, or may be reversed as a whole, according to the manifest justice of the case, we think the eases cited sufficiently show.”

See, also, Hamilton v. Prescott, 73 Tex. 565, 567, 11 S. W. 548; Ferguson v. Dickinson (Tex. Civ. App.) 138 S. W. 221, 222, 223, and authorities there cited; Miller v. First State Bank & Trust Co. (Tex. Civ. App.) 184 S. W. 614, 619, 620.

The appeal of Morris Thomas conferred jurisdiction upon the Court of Civil Appeals to reverse the judgment of the trial court and to remand the cause for a retrial as between all the parties thereto, and deprived the judgment so appealed from of the finality required to make the defendant therein subject to garnishment on account of - the recoveries there awarded against him.

Appellee further contends that, because this suit was not tried until the judgment in said cause No. 27441 became final by reason of affirmance on appeal, and because such affirmance was set up by the garnishee in an amended answer, the recovery awarded it was proper and ought to be affirmed. The writ of garnishment served on the garnishee commanded him to appear and answer on the first day of the ensuing term of the court and to disclose in said answer what, if anything, he was then indebted to Mrs. Bornstein and what, if anything, he was so indebted at the time same was served. The statute '(article 40S7, Rev. St. 1925) required him to file such answer on or before the appearance day of said term of court. He complied with the command of the writ and the requirement of the statute. The service of the writ impounded any sum or sums owed by the garnishee to Mrs. Bornstein which were subject to garnishment either at the lime of the service thereof or at the time of the filing of his answer. Gause v. Cone, 73 Tex. 239, 240-242, 11 S. W. 162; Gallagher v. Pugh (Tex. Civ. App.) 66 S. W. 118, 119, 120. The service of such writ did not impound any such sum or sums unless they were subject to garnishment at such time. Planters’ & Mechanics’ Bank v. Floeck, 17 Tex. Civ. App. 418, 43 S. W. 589-591 (writ refused); Medley v. American Radiator Co., supra; Shropshire v. Alvarado State Bank (Tex. Civ. App.) 196 S. W. 977, 979; Darlington-Miller Dumber Co. v. National Surety Co., supra. The answer of the garnishee, filed in pursuance of the writ and in compliance with the requirements of the statute, showed that the judgment in favor of Mrs. Bornstein had not become final, but was in process of appeal. Such appeal was subsequently perfected. The service of the writ of garnishment was therefore ineffective to impound the fund sought to be reached, and the same was subject to assignment by Mrs. Bornstein. Waples-Platter Grocer Co. v. Texas & Pacific Ry. Co., supra; Kreisle v. Campbell, supra; Thompson v. Gainesville Nat. Bank, 66 Tex. 156, 158, 18 S. W. 350. She did assign the same before said' judgment became final and before the garnishee filed his amended answer. The validity of said assignments is not assailed except on the ground that the fund assigned had been impounded by the service of the writ of garnishment. We do not think the subsequent filing of an amended answer by the garnishee setting up the affirmance of said judgment, which affirmance occurred after such assignments had been made, could or did affect the rights of the said assignees. Medley v. American Radiator Co., supra.

The judgment of the trial court, so far as it awards a recovery against the garnishee in favor of the bank, is here reversed, and judgment is rendered that the bank take nothing herein, and that the appellant Alexander recover of the garnishee the sum of $350, and that appellant Haney recover of the garnishee the sum of $650, and that both the appellants recover their costs.