On Motion for Rehearing.
Plaintiff in error suggests several grounds of error in the disposition we make of the case. We think to discuss only one or two of such grounds, believing as we do, that the matters not directly discussed are incidental to and depend upon the correctness of the disposition we make of the matters discussed.
Plaintiff in error submits that i-t w’as fundamental error to affirm the case for a personal judgment against the ’ garnishee White, his only liability being that of a' receiver.
• If we understand the contention made it is, in effect, that Sibley's cause of action as to White could be maintained only by a proceeding by application of Sibley as a creditor making White- receiver of the property for the benefit of all of Murray’s creditors, and proceeding against him as such receiver, and that in no event could a personal judgment be properly rendered against him.
Under our present Bulk Sales Act as amended in 1915' (Rev. St. 1925, arts. 4001-4003) Sibley could have proceeded against White, as suggested in plaintiff in error’s motion, as provided in the statute, and as so clearly stated by Judge German in Gardner v. Goodner Wholesale Grocery Co., 113 Tex. 423, 256 S. W. 911, 912, by making application to a court of competent jurisdiction containing allegations of the material facts as to the transaction involved, etc., have the receivership declared, have the matter adjudicated as between the purchaser White and the Murray creditors, as in an ordinary receivership proceeding, but Sibley elected not to do so, but did-elect to proceed by garnishment as he had the right to do.
Plaintiff in error refers us to the case of Gardner v. Goodner Wholesale Grocery Company, supra, as sustaining his position. It will be noted that in that case appellee did not proceed by garnishment but undertook to proceed 'against Gardner as trustee as provided by the amendment of March 23,1915 (Acts 1915, c. 114), to the Bulk Sales Act, providing that “any purchaser or transferee who shall not conform to the provisions of this Act shall, upon application of any of- the creditors of the seller or transferor, become a receiver and be held accountable to such creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale or transfer.” In the Gardner v. Goodner Wholesale Grocery Company Case, the court was not discussing a garnishment proceeding under the Bulk Sales Law, but was discussing the other or additional remedy of the 1915 amendment as made by the pleadings in that case. ' The court, however, in that case took occasion to say that “the statute as now written was not intended to do -away with proceedings by garnishment or other process, but was intended to furnish an additional remedy, more direct, effective, and equitable to the various creditors, if more than one,” evidently leaving it to the creditor to proceed by garnishment if he so desired.
The court also held: “It is now a universally recognized rule of law that a trustee who disposes of or converts to his own use trust property, placing it beyond the reach of the creditors, will be held personally liable therefor.”
We think we need not discuss nor inject into this garnishment proceeding what, would have been proper had the proceeding been other than garnishment as was the Gardner Case. To us the confusion in appellant’s contentions seems to arise from his efforts to apply the proceedings of one remedy to that of the other.-
We' have not been able to see, in this proceeding, there being no property in the hands of the court to dispose of for the benefit of the creditors, any benefit to either party to have the creditors of Murray brought in and prove their claims, or have an accounting. *269There is no property to share with the creditors, the property having been converted by appellant. Such proceeding, under such circumstances, would be disappointing, and confusing to all in the absence of property to dispose of and share proportionally alike to the creditors.
For reasons stated we think the motion should he overruled and it is so ordered.