
    HOUSEMAN et al. v. GUARANTY SECURITIES CO.
    (No. 1991.)
    Court of Civil Appeals of Texas. El Paso.
    March 17, 1927.
    Estoppel @=>68 (5)— Defendant and surety, on replevy bond to release money seized in bank, held estopped to deny defendant’s ownership.
    Defendant judgment debtor and his surety, upon- replevy bond to release from garnishment moneys in hands of bank in defendant’s hame, held estopped to deny that the money belonged to -defendant, and to allege that it belonged to the surety.
    Appeal from District Court, Dallas County; Douis Wilson, Judge.
    Action by the Guaranty Securities Company against Clarence Houseman and others, in which the Central National Bank of Dallas was made garnishee and Dr. Guy E. Witt intervened. Judgment for ' plaintiff, and defendant and intervener appeal.
    Affirmed,
    Callaway, Dalton & Callaway, of Dallas, for appellants. . .
    Irish & Henderson, of Dallas, for appellee.
   HIGGINS, J.

Appellee recovered a judgment for $943.25 against Clarence Houseman and others. Based thereon, writ of garnishment was issued and served upon the Central National Bank of Dallas. The bank answered, admitting an indebtedness of $811.47 to Houseman and negativing any other liability. Houseman gave a replevy bond, with Dr. Guy F. Witt and . another as sureties, which recited the issuance and .service of the writ, and then proceeded:

“And whereas Clarence Houseman, defendant,, claims that he does hot own or. claim any part of the funds or -money in the hands of the Central National Bank, but that all of said moneys belong to and are the property of Dt\ Guy E. Witt and were merely placed in the bank in the name of the said Clarence Houseman, as the agent and' representative of the said Witt, and that he therefore, as such- agent and for the benefit of his said principal, desires to replevy any effects, debts, shares, or claims of any kind .seized or garnished under and by Virtue of said writ of garnishment:
“Now, therefore, in order to release from the lien of said writ any and all debts, claims, shares, and effects, if any, owing by and in the possession' of the said Central National Bank, and belonging to the said Clarence Houseman, as trustee and agent for the said Dr. Guy F. Witt at th,e date of service of said writ, and which may be’ owing, by him or shall come into his possession up to the time of filing his answer as garnishee in said cause, we, the undersigned Clarence Housemaii, as principal, Guy F. Witt and Homer Donald, as sureties, acknowledge ourselves bound to pay to the said Guaranty Securities Company, the sum of $1,880.50, conditioned for the payment of any judgment that may be rendered against the said. Central National Bank, as garnishee.”

Houseman answered, controverting the answer of the garnishee. He alleged the fund in controversy belonged to Dr. Guy F. Witt and was turned over to him (Houseman), as Dr. Witt’s agent, to be used and paid out for the latter's benefit.

Dr. Witt intervened, setting up the same facts.

The appellee replied to' the pleadings of Houseman and Witt, that, by the execution of the replevy bond afid withdrawal of the fund from the garnishee, they were estopped toil eny. that the money belonged to Houseman.

The trial court sustained the contention of appellee and rendered judgment accordingly. Houseman and Witt appeal.,

! All question as to the correctness of the trial court’s ruling is foreclosed in its favor by Davis v. McFall (Tex. Civ. App.) 168 S. W. 453, and Bank v. Sanborn (Tex. Civ. App.) 169 S. W. 1075.

In the first-cited case the principal defendant, W. C. McFall, replevied the garnished fund giving bond with j. M. McFall as one of the sureties.' The bond recited that W. C. Mc-Fall desired to replevy the fund for the rea^ son. that:

It “is n,ot the property of the said W. C-McFall, but belongs to one J. M. McFall.”

J. M. McFall intervened in the garnishment suit, claiming the money as his own and that W. C. McFall held it in trust for him. It was ■ held that W. C. McF'all and his surety, J. M. McFall, Were both estopped to deny the money belonged to W. O. McFall, and judgment was .rendered in favor of the plaintiff in garnishment. This case is directly in point’. A' writ of error was refused.

In Bank v. Sanborn (Tex. Civ. App.) 169 S. W. 1075 (writ refused), the saíne ruling was made, but in this casé there were no recitals in the bond asserting ownership of the fund to be in any one other than the principal defendant.

In further support of the judgment rendered' herein, see Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30.

Affirmed. 
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