Appellees had obtained a judgment against J. F. Arnold for the sum of $100, interest and costs. Thereafter ap-pellees sued out a writ of garnishment against the First National Bank of Waco. The bank answered that it had on deposit $51.51, in the name of J. F. Arnold. Arnold controverted the bank’s answer, stating that the money so held by it belonged to King & King, and was held by him as the agent of said parties. King & King intervened, claiming the $51.51. Judgment was rendered in the justice court, where said cause was pending, striking out King & King’s plea of intervention, and in favor of Porter.for $51.-51, and $5 attorney’s fees.
Upon appeal to the county court, this cause was submitted upon the following special issue:
*647“To whom did the $51.51, on. deposit in the First National Bank, in the name of J. F. Arnold, belong, on April 2, 1919, when the writ of garnishment was served?” To which the jury answered: “To J. F. Arnold.”
Judgment was thereupon rendered in favor of appellees and against all other parties to the suit.
Appellants requested the following special charge:
“At request of interveners, you are instructed to return a verdict in their favor for the $51.51, on deposit in the First National Bank of Waco in the name of J. F. Arnold.”
[1 ] The uncontroverted facts show that J. F. Arnold was the agent, at Waco, for King & King, of Atlanta, Ga., for the purpose of loaning their money, and that he was paid a weekly salary for his services, and had no other interest in the business. Also, that Arnold received checks from King & King, payable to him, as manager, for the sum of $1,600, the proceeds of which he deposited in the First National Bank of Waco in his own name. He also deposited with said bank about $100 of his own money. Thereafter he drew out all of said money, except $51.51. He drew the money of his own which he had deposited, in the transaction of his own business; the remainder he drew upon checks signed by him, in his own name, but for the transaction of the business of King & King. He testified that this $51.51 belonged to King & King. This would be true as a matter of law. The $1,600 received by him was a trust fund, to be used for the purposes for which it was sent, and though he mingled' his own funds therewith, the remainder which had not been used in the discharge of his- trust would be the property of King & King.
In the ease of Silsbee State Bank v. French Grocery Co., 103 Tex. 631, 132 S. W. 466, 34 L. R. A. (N. S.) 1207; the Supreme Court of this state said:
“The depositor controls the fund whether he is the true owner or not. The garnishing creditor can reach it only in the case he is the true owner.”
This doctrine finds support in the following cases: Morrill v. Raymond, 28 Kan. 415, 42 Am. Rep. 167; Marx v. Parker, 9 Wash. 473, 37 Pac. 675, 43 Am. St. Rep. 849; Bank v. King, 57 Pa. 202, 98 Am. Dec. 216; 20 Cyc. 1022; 12 R. C. L. 806.
We quote from the last authority as follows:
“If the funds are trust funds, they cannot be subject to the claim of his creditors.”
In. Bank v. King, supra, it was said that it was immaterial in whose name the legal title stood.
The bank books and checks were exhibited, showing the amount of money received by Arnold, as manager, the amount that he had deposited, and the amount that he had withdrawn.
The law being as above stated, and the facts in this case being undisputed, the court should have given the special instruction above set out.
The trial court allowed the bank an attorney’s fee of $10, for filing answer. This is affirmed; otherwise the judgment of the court below is reversed, and judgment is here rendered for appellants.
Affirmed in part, and in part reversea and rendered.
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