TARLTON, Chief Justice.
The appellee J. C. James, on May
2,
■1892, brought this suit, number 466, against the State Rational Bank and against W. J. Spencer, a resident of Ellis County, Texas, and appellant herein.
The allegations of the plaintiff’s petition are to the following purport: On and before December 18,1890, B. P. McFarlin & Co., a firm composed of B. P. McFarlin and R. M. McFarlin, were indebted to T. M. James & Sons, of Kansas City, Mo. On this indebtedness T. M. James & Sons recovered, on August 22, 1891, a judgment against B. P. McFarlin & Co., in the sum of $768.81. On December 18,1890, T. M. James
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Sons caused to be issued and served a writ of garnishment upon the State Rational Bank of Vernon, and on the 14th day of January, 1892, obtained in this garnishment proceeding a judgment against the bank, finding that R. M. McFarlin owned ten shares of the capital stock of the bank, represented by certificate number 73, standing on the books of the bank in the name of R. S. Kelly. By virtue of the judgment thus obtained, and of a writ of execution issued in accordance therewith, the ten shares described were on the 22nd day of March, 1892, duly sold and title thereby transferred to J. C. James as the purchaser. On demand made by James for the issuance to him of its certificate of stock in lieu of certificate number 73, the bank refused to recognize his title to the stock. The defendant W. J. Spencer was in possession of the stock, claiming to be the owner, by virtue of an indorsement thereof to him, which claim was asserted for the purpose of aiding R. M. McFarlin in covering up his property, and of defeating the plaintiff in the collection of his debt, and was acquired after the issuance and service of the writ of garnishment upon the bank, and with full knowledge thereof. Spencer was seeking the issuance by the bank of a certificate of stock to him, and the bank would, in violation of the judgment of the court, so issue its certificate of stock to Spencer, unless restrained. If the certificate should be thus issued to Spencer, he would be enabled to transfer the same, and thus defeat the title of the plaintiff to the stock, which is of value of $1000. The bank refused to recognize plaintiff’s right to the stock. The petition concluded with a prayer for a writ of injunction restraining the bank from issuing a certificate for the stock named to any person other than the plaintiff, and restraining W. J. Spencer from demanding the stock and from transferring certificate number 73, and requiring him to hold the certificate until final disposition by the court, and that the bank be required by mandatory writ of injunction to issue a certificate for the stock to the plaintiff.
On July 29, 1892, the defendant Spencer filed an answer asserting his privilege to be sued in the county of his residence, and excepting to the jurisdiction of the District Court of Wilbarger County over his person. He denied any equity in the bill, and by way of cross-bill against his codefendant the bank, he prayed judgment for the value of the stock as for conversion, alleging ownership in himself, and an
ádj udication of the title to the stock by the District Court of Ellis County in a ease to which he and the bank were parties.
On ¿November 21, 1892, the appellant, Spencer, filed his cause, number 557, in the District Court of Wilbarger County, against the State National Bank alone. He alleged his ownership of the stock in controversy, a demand by him of the bank for the issuance of a new certificate, and a refusal to comply with this demand. He further alleged an adjudication on March 17, 1892, by the District Court of Ellis County, of the ownership of the stock, as between himself and the defendant bank. He prayed for a judgment against the bank for the value of the stock, as for conversion.
In each of these causes the defendant bank filed an answer averring that Spencer was not the owner of the stock, that he had no interest in it; that it was ready and willing to issue a certificate for the stock in controversy to the person to whom it belonged; that James and Spencer were both claiming it; that both had judgment against the bank; and it prayed that the matter be adjudicated between the two claimants. In its original answer, filed January 31, 1893, in the cause number 557, it prayed that the two cases should be consolidated, alleging that the title to the identical stock was in controversy in each case, and that the evidence with reference to the issue was substantially the same.
The cause was called for trial at a regular term. In the absence of the appellant and of his counsel, the prayer for consolidation was repeated in a motion to that effect presented by the bank. The motion was granted, the trial had, and a judgment rendered on August 10, 1893, for plaintiff, in accordance with the prayer of his petition.
The court filed conclusions of fact, reciting, in effect, the judgment recovered by James & Sons against McFarlin & Co., the issuance of the execution and levy thereon, and the sale of the stock to the plaintiff J. C. James, and the consequent transfer to him by the sheriff, as averred in his petition. It further found the refusal by the bank on his request to issue a certificate for the ten shares of stock in controversy to him, and its refusal to recognize in any manner the plaintiff as one of its shareholders, on the ground that W. J. Spencer was claiming the stock in controversy. It further found, reciting the consolidation of. the causes on the motion of the defendant bank, that on the issues contained in the pleadings of the plaintiff James and of the defendant bank, the defendant Spencer or his attorney not being present, and upon the evidence adduced on the trial, that at the date of the issuance and service of the writ of garnishment, as already detailed, the stock in .controversy was the property of R. M. McFarlin, and subject to the writ. Whence the court concluded as a matter of law, that the plaintiff James was the owner of the stock and entitled to a certificate in his own name; that the defendant bank should be perpetually enjoined from issuing a certificate for the stock to W. J, Spencer; and
that the defendant Spencer should be restrained from claiming the stock.
The record contains no statement of facts, and the conclusions of fact found by the court are adopted by us.
Opinion.—The action of the court in consolidating the two causes, under the circumstances above detailed, can not be regarded as a ground for serious complaint. As against the bank, the appellant, Spencer, was the plaintiff in each case—by his cross-bill in cause number 466, and by his original petition in cause number 557. The cause of action asserted by him was the same in each instance. We find no such abuse of discretion on the part of the court, and no such injury to the appellant, as would authorize us to condemn its action in the respect named. Young v. Gray, 65 Texas, 99; Harle v. Langdon, 60 Texas, 555.
It follows,-that the court was not called upon to dismiss cause number 557 for want of prosecution, nor did it err in failing to sustain the appellant’s personal plea to the jurisdiction of the court in cause-number 466.
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TARLTON, Chief Justice.
The appellee J. C. James, on May
2,
■1892, brought this suit, number 466, against the State Rational Bank and against W. J. Spencer, a resident of Ellis County, Texas, and appellant herein.
The allegations of the plaintiff’s petition are to the following purport: On and before December 18,1890, B. P. McFarlin & Co., a firm composed of B. P. McFarlin and R. M. McFarlin, were indebted to T. M. James & Sons, of Kansas City, Mo. On this indebtedness T. M. James & Sons recovered, on August 22, 1891, a judgment against B. P. McFarlin & Co., in the sum of $768.81. On December 18,1890, T. M. James
&
Sons caused to be issued and served a writ of garnishment upon the State Rational Bank of Vernon, and on the 14th day of January, 1892, obtained in this garnishment proceeding a judgment against the bank, finding that R. M. McFarlin owned ten shares of the capital stock of the bank, represented by certificate number 73, standing on the books of the bank in the name of R. S. Kelly. By virtue of the judgment thus obtained, and of a writ of execution issued in accordance therewith, the ten shares described were on the 22nd day of March, 1892, duly sold and title thereby transferred to J. C. James as the purchaser. On demand made by James for the issuance to him of its certificate of stock in lieu of certificate number 73, the bank refused to recognize his title to the stock. The defendant W. J. Spencer was in possession of the stock, claiming to be the owner, by virtue of an indorsement thereof to him, which claim was asserted for the purpose of aiding R. M. McFarlin in covering up his property, and of defeating the plaintiff in the collection of his debt, and was acquired after the issuance and service of the writ of garnishment upon the bank, and with full knowledge thereof. Spencer was seeking the issuance by the bank of a certificate of stock to him, and the bank would, in violation of the judgment of the court, so issue its certificate of stock to Spencer, unless restrained. If the certificate should be thus issued to Spencer, he would be enabled to transfer the same, and thus defeat the title of the plaintiff to the stock, which is of value of $1000. The bank refused to recognize plaintiff’s right to the stock. The petition concluded with a prayer for a writ of injunction restraining the bank from issuing a certificate for the stock named to any person other than the plaintiff, and restraining W. J. Spencer from demanding the stock and from transferring certificate number 73, and requiring him to hold the certificate until final disposition by the court, and that the bank be required by mandatory writ of injunction to issue a certificate for the stock to the plaintiff.
On July 29, 1892, the defendant Spencer filed an answer asserting his privilege to be sued in the county of his residence, and excepting to the jurisdiction of the District Court of Wilbarger County over his person. He denied any equity in the bill, and by way of cross-bill against his codefendant the bank, he prayed judgment for the value of the stock as for conversion, alleging ownership in himself, and an
ádj udication of the title to the stock by the District Court of Ellis County in a ease to which he and the bank were parties.
On ¿November 21, 1892, the appellant, Spencer, filed his cause, number 557, in the District Court of Wilbarger County, against the State National Bank alone. He alleged his ownership of the stock in controversy, a demand by him of the bank for the issuance of a new certificate, and a refusal to comply with this demand. He further alleged an adjudication on March 17, 1892, by the District Court of Ellis County, of the ownership of the stock, as between himself and the defendant bank. He prayed for a judgment against the bank for the value of the stock, as for conversion.
In each of these causes the defendant bank filed an answer averring that Spencer was not the owner of the stock, that he had no interest in it; that it was ready and willing to issue a certificate for the stock in controversy to the person to whom it belonged; that James and Spencer were both claiming it; that both had judgment against the bank; and it prayed that the matter be adjudicated between the two claimants. In its original answer, filed January 31, 1893, in the cause number 557, it prayed that the two cases should be consolidated, alleging that the title to the identical stock was in controversy in each case, and that the evidence with reference to the issue was substantially the same.
The cause was called for trial at a regular term. In the absence of the appellant and of his counsel, the prayer for consolidation was repeated in a motion to that effect presented by the bank. The motion was granted, the trial had, and a judgment rendered on August 10, 1893, for plaintiff, in accordance with the prayer of his petition.
The court filed conclusions of fact, reciting, in effect, the judgment recovered by James & Sons against McFarlin & Co., the issuance of the execution and levy thereon, and the sale of the stock to the plaintiff J. C. James, and the consequent transfer to him by the sheriff, as averred in his petition. It further found the refusal by the bank on his request to issue a certificate for the ten shares of stock in controversy to him, and its refusal to recognize in any manner the plaintiff as one of its shareholders, on the ground that W. J. Spencer was claiming the stock in controversy. It further found, reciting the consolidation of. the causes on the motion of the defendant bank, that on the issues contained in the pleadings of the plaintiff James and of the defendant bank, the defendant Spencer or his attorney not being present, and upon the evidence adduced on the trial, that at the date of the issuance and service of the writ of garnishment, as already detailed, the stock in .controversy was the property of R. M. McFarlin, and subject to the writ. Whence the court concluded as a matter of law, that the plaintiff James was the owner of the stock and entitled to a certificate in his own name; that the defendant bank should be perpetually enjoined from issuing a certificate for the stock to W. J, Spencer; and
that the defendant Spencer should be restrained from claiming the stock.
The record contains no statement of facts, and the conclusions of fact found by the court are adopted by us.
Opinion.—The action of the court in consolidating the two causes, under the circumstances above detailed, can not be regarded as a ground for serious complaint. As against the bank, the appellant, Spencer, was the plaintiff in each case—by his cross-bill in cause number 466, and by his original petition in cause number 557. The cause of action asserted by him was the same in each instance. We find no such abuse of discretion on the part of the court, and no such injury to the appellant, as would authorize us to condemn its action in the respect named. Young v. Gray, 65 Texas, 99; Harle v. Langdon, 60 Texas, 555.
It follows,-that the court was not called upon to dismiss cause number 557 for want of prosecution, nor did it err in failing to sustain the appellant’s personal plea to the jurisdiction of the court in cause-number 466. It appears that this plea had been filed on July 29, 1892; that two terms of the District Court had passed without any attempt by the appellant to invoke the action of the court thereon. He must be deemed to have waived it, had it been meritorious if duly presented. Blum v. Strong, 71 Texas, 321.
We must overrule the sole proposition asserted under the appellant’s fourth assignment of error, to the effect that the plaintiff could not invoke equitable relief, such as he here seeks to assert, in the absence of pleading and proof showing insolvency on the part of the defendants. This must be regarded as an equitable proceeding to enforce the transfer of stock on which a lien had been previously fixed by a garnishment proceeding. Under the averments of the petition, the plaintiff held an.equitable interest in the stock, though the legal title was elsewhere, as the stock did not appear upon the books of the bank in the name of the plaintiff. It would therefore seem, under the facts alleged, that the bank held the property in trust for the plaintiff, and that he should be entitled to relief in equity against it to protect his right and to compel a transfer. Harrell v. Cattle Co., 73 Texas, 612; Bank v. Seton, 1 Pet., 299; Dewing v. Perdicaries, 96 U. S., 193; Tel. Co. v. Davenport, 97 U. S., 1047; Mora. Priv. Corp., secs. 219, 216, 208.
We are not prepared to hold that an action for damages as for the conversion of the stock would be an adequate remedy at law, since the owner of the stock might prefer the property itself to its equivalent in money. It would seem that where an action in equity and one at law would alike lie, it is not for the “wrongdoer to prescribe to the injured person what his remedy shall be.” Baker v. Wasson, 59 Texas, 145. We have seen that this proceeding was to enforce the transfer of stock, by virtue of the fact that the bank was the implied
trustee for the plaintiff, and an equitable remedy therefore could be properly invoked.
It is claimed that the judgment of the courtis not supported by the conclusions of fact found, and that the court omitted a finding of such facts as would justify a judgment against Spencer, in that it fails to find when the stock was issued to R. S. Kelly, or that it went into the hands of appellant, or that Spencer held the stock in collusion with McFarlin or for his benefit, or that the stock was of any value.
The record presents no exceptions to the conclusions of the court in reference to the matters of omission referred to. We find what purports to be a bill of exceptions in this respect, but this does not appear to have been filed among the papers nor called to the attention of the court. We are unable to consider this as a bill of exceptions. The motion for a new trial filed by the appellant fails to call the attention of the court to any special feature wherein its findings of fact w.ere defective. Accordingly, it does not appear that any proper exception was reserved, either by bill of exception or by exception in the judgment entry, to the action of the court with reference to its conclusions of fact.
Under such circumstances, it would seem to be our duty to impute to the court an actual finding of all such facts as would justify its judgment, under the pleadings of the parties. Ins. Co. v. Milliken, 64 Texas, 46; Biggerstaff v. Murphy, 3 Texas Civ. App., 365.
The court informs us, that it adjudicated the issue upon the pleadings of the plaintiff and of the defendant bank. The pleadings of these parties directly raised the issue adjudicated, including the title of the stock in Spencer, and consequently the judgment seems to be covered by the averments considered. The conclusions of fact found by the court show that the plaintiff was entitled to a transfer of the stock, with the privileges and benefits incident thereto, and that consequently he was likewise entitled to such process as under his averments would secure to him the enjoyment of these privileges. Strange v. Railway, 53 Texas, 162.
It appears, that in compliance with the request by the attorney for the appellant to have these two cases set for a day certain, the attorney for the appellee bank agreed to attempt to secure a trial on August 9th. It is contended by the appellant, that subsequent to this agreement a further agreement was had, postponing the cases until September 1st. A motion for new trial founded upon the fact that the cause was tried on August 10th, in violation of the latter agreement, was overruled by the court, and this action is assigned as error.
The contention of the appellant resting upon this agreement was sharply controverted by the attorneys for the appellees, and the fact of the agreement was by them denied. Affidavits pro and con were filed. This matter was determined by the trial court upon the issue thus presented. While the record contains, in connection with the affidavits, much correspondence passing between the attorney for the
appellant, residing at Waxahachie,and his correspondents at Vernon, there is in the record no bill of exceptions showing what evidence upon the issue presented was heard by the court. We are not prepared to conclude that the court erred in holding that the attorneys for the appellees had not entered into the agreement alleged by the appellant, and strenuously denied by them.
Having failed to find merit in any of the assignments presented, we order that the judgment be affirmed.
Affirmed.
Delivered April 29, 1895.