Opinion
No. 13087.
Decided July 28, 1937.
Fees of Office — Garnishment — Case Overruled.
Fees of office collected by a constable and deposited to his credit in a bank are subject to garnishment by his judgment creditor. Holding in Smith v. Oak Cliff Bank Trust Co., 99 S.W.2d 1103, overruled.
Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.
Suit in garnishment by Mrs. Pearl Smith against the account of D. A. Bradshaw, Constable, in the Oak Cliff Bank Trust Company. The garnishment was issued on a judgment previously rendered against D. A. Bradshaw for $250.00. The garnishee filed no answer, but the defendant filed a motion to quash which was sustained by the trial court. This judgment was reversed and rendered by the Court of Civil Appeals ( 105 S.W.2d 340) and the defendant has brought error to the Supreme Court. Upon original hearing the application was dismissed for want of jurisdiction, and plaintiff in error has filed motion for rehearing.
Motion overruled.
Allen Melton and Ernest McCormack, both of Dallas, for plaintiff in error.
Tom C. Clark, Paul D. Lindsey, and C. J. Shaeffer, all of Dallas, for defendant in error.
In the case at bar the opinion of the Court of Civil Appeals at Dallas holds that the fees of office of a constable which have been collected by him and deposited to his credit in a bank are subject to garnishment by his judgment creditor. Smith v. Bradshaw, 105 S.W.2d 340. On the 7th day of July, 1937, we dismissed for want of jurisdiction the application for writ of error filed by the constable. The application is again before us, on motion for rehearing. An examination of the opinion in this case shows that it is in direct conflict with the opinion of the Fort Worth Court of Civil Appeals in Smith v. Oak Cliff Bank Trust Company ( 99 S.W.2d 1103), wherein it was held that the fees of office of a constable which had been collected by him and deposited to his credit in a bank were not subject to garnishment by his judgment creditor. We are in accord with the holding of the Dallas court in the present case. Our order on this application, therefore, should have been one of refusal, and not of dismissal for want of jurisdiction. We, therefore, here now overrule the holding of the Fort Worth Court of Civil Appeals in the case above mentioned, and approve the holding of the Dallas court.
The motion for rehearing filed herein by D. A. Bradshaw, Constable, is in all things overruled.
Opinion adopted by the Supreme Court July 28, 1937.