Amarillo Nat. Bank. v. Sanborn

On Motion for Rehearing. Appellees, except Mrs. Sanborn, have filed motions for rehearing, insisting that we erred in our original opinion, in that the question of estoppel should not have controlled the disposition of the case, and that, if the fund was not subject to garnishment, the judgment should have been affirmed, notwithstanding the question of estoppel. The effect of an estoppel, whether legal or equitable, is to preclude the parties from contradicting the recital or admission on which the estoppel is founded, and its existence must always be a question of law for the court, and not of fact for the jury. Temple v. Partridge, 42 Me. 56; Jackson v. Waldron, 13 Wend. (N.Y.) 178; Wightman v. Reynolds,24 Miss. 675; Goodrich v. Bryant, 5 Sneed (Tenn.) 325; Heilner v. Battin, 27 Pa. 517.

Appellees also request additional findings as to whether the fund sought to be reached by the garnishment was, at the time of the service of the writs of garnishment and execution of the replevin bond, subject to garnishment. Separate and apart from the question of estoppel, we think the fund was not subject to garnishment under the terms of the contract existing between the parties at the time the writ was served, but, in our opinion, appellees, by consummating the deal between the time of the service of the writ and the filing of their several answers, created a debt which could be garnished.

Since handing down our original opinion in this case at the last term, our attention has been called to the case of Davis v. McFall, 168 S.W. 453, in which Conner, J., citing Seinshiemer v. Flanagan and other authorities not cited by us, holds that the execution of a replevin bond, as in this case, constitutes an estoppel against the defendant and his bondsmen.

We have carefully reviewed the motions for rehearing filed by appellees, as well as the authorities cited by them, and, while the grounds urged are strongly persuasive, we think the law is established in this state as we have declared it.

The motions for rehearing are therefore overruled.

HENDRICKS, J., disqualified, not participating.