Opinion
No. 3790.
January 17, 1930. Rehearing Denied January 30, 1930.
Appeal from Rusk County Court; S. L. Ramsey, Judge.
Action by W. C. Gibson against A. T. Haygood, in which the Tatum State Bank was garnished. From an adverse judgment, the garnishee appeals. Reversed and remanded.
The appellee recovered a personal judgment against A. T. Haygood for the sum of $187.74 and costs of suit. On February 25, 1929, the appellee sued out a writ of garnishment against the appellant bank. The bank answered denying that it was indebted to A. T. Haygood, or had effects belonging to him in its possession, and stating that it did not know of any other person indebted to him or having effects belonging to him in their possession. The appellee controverted the bank's answer. A trial was had in the justice court, and, from a judgment against the bank for $187.74 and costs, it appealed to the county court. In the county court a judgment for $60 and all costs was rendered against the bank.
The following are the circumstances offered by the appellee to support his controverting affidavit and to establish liability of the garnishee: The bookkeeper for Bell Bros. Dry Goods Company testified that in October, 1928, A. T. Haygood purchased dry goods at the store of Bell Bros. in Henderson, Tex., and gave a check in his own name on the Tatum State Bank to Bell Bros. to pay for the purchase; the amount of the check not being known. Before accepting the check the bookkeeper of Bell Bros. telephoned the Tatum State Bank, inquiring "if a check of A. T. Haygood was good"; and the president of the bank replied, as the bookkeeper testified, "it was." The check was "deposited" by Bell Bros. in "one of the local banks" at Henderson, and that local bank "cashed it." As further testified by the bookkeeper: "The check did not come back to Bell Bros. marked unpaid," and "no check of A. T. Haygood came back to us." There was no proof offered that the local bank at Henderson, which cashed the check, ever sent the check to the Tatum State Bank for payment. It was admitted as a fact that Mrs. A. B. Haygood, the wife of A. T. Haygood, at the time of the garnishment proceedings, had a deposit in her name in the Tatum State Bank of $50. The president of the Tatum State Bank testified that he understood the bookkeeper of Bell Bros. was inquiring "about Mrs. A. B. Haygood's account," and did not understand that it was A. T. Haygood that such bookkeeper was inquiring about. It was further shown by the president of the bank that "We did not have and have never had any A. T. Haygood on our books as a depositor," and that "I have never cashed a check for A. T. Haygood." On cross-examination the president testified: "I do not know whether Mrs. A. B. Haygood made the deposits herself or whether they were made by some one else for her. I do not know of any business she is in except that of farming, and her income was like that of any other farm woman. If she had any other income I did not know of it. I do not know of any source in the world from which she might obtain revenue for deposit other than from her labor. Mr. A. T. Haygood did not have an account in our bank."
Futch Cooper, of Henderson, for appellant.
H. H. Wellborn, of Henderson, for appellee.
The bank makes the complaint that (1) the costs in both the justice and county courts were taxed against it, although the judgment of the county court was for a less amount than that of the justice court, and (2) the evidence does not establish any liability on the part of the garnishee. The bank was entitled to recover the costs of the county court under article 2065, R.S.; but that point is solved by the ruling upon the second point, which operates to be decisive of the garnishment proceedings. It is believed that the circumstances do not show that the bank had funds or money subject to A. T. Haygood's check. The burden was upon the appellee to so show. There was affirmative evidence that A. T. Haygood had no account in his name in the bank at the time of or prior to the garnishment. The only circumstances offered to show to the contrary were that the president of the bank informed the bookkeeper of Bell Bros. that "a check on A. T. Haygood was good," and that the check given to Bell Bros. was never returned to them "unpaid." These bare circumstances are not of sufficient weight to overcome the affirmative evidence that A. T. Haygood had no funds or account in the bank. The president of the bank states that he understood the inquiry was as to A. B. Haygood, who had an account in the bank, and not as to A. T. Haygood. There is no proof that the check claimed to have been given by A. T. Haygood to Bell Bros. ever reached the Tatum State Bank. There is proof that the local bank in Henderson cashed the check, but there is no pretense in the evidence that the bank ever sent it to the Tatum State Bank for collection. There is no proof of the amount of the check. It was conclusively shown that there were funds on deposit in the Tatum State Bank in the name of Mrs. A. B. Haygood, wife of A. T. Haygood. By the terms of the statute such funds would be presumed to be the separate property of the wife. Article 4022, R.S. The proof does not overcome this presumption. The testimony of the president of the bank goes no further than to show that he did not know the source of her income. Undoubtedly the funds of the community may be impounded, no matter in whose name it stands in the bank. Szanto v. First State Bank of Mt. Calm (Tex.Civ.App.) 212 S.W. 971. But there must be proof establishing that they are community funds in order to impound them. The presumption would not be that they are community funds in this instance, in view of the above article of the statutes.
The judgment is reversed, and the cause is remanded.