The opinion
On Motion for Rehearing.
In the motion for rehearing it is contended by appellees that: “The Court of Civil Appeals has erred in its holding that the allegation of the appellant, William Buchanan, stating that as the defendant, the Read Land & Lumber Company, ‘had delivered to Buchanan’s attorney and agent the contract the said Read Land & Lumber Company had with the board of trustees of school district No. 1 of Zavala county, together with the bills for material furnished under it for the purpose of securing said Buchanan in the payment of the promissory notes mentioned,’ was a sufficient allegation to authorize said Buchanan to intervene, and that such allegation was in effect an assignment to said Buchanan of whatever was due, or might become due, the Read Land & Lumber Company by the board of said school district under such contract, to the extent of the amount due intervener on the notes for the purpose of securing their payment. And that whatever right the said company had to the money due or to become due on said contract, to the extent of its indebtedness to the intervener on said notes, passed to said Buchanan by virtue of such assignment.”
Let it be conceded that the assignment of the Read Land & Lumber Company to Buchanan was only made as collateral security to secure the latter in the payment of the debt owed him by the former, still it was nevertheless an assignment for this purpose, and, unless such indebtedness has been paid, Buchanan, as against appellants, is entitled to such security and to have the money in the hands of the garnishee shown by its answer to be due on such contract appropriated to the payment of his debt. And as school districts, school boards, and the like are not subject to garnishment (Herring-Hall-Marvin Co. v. Bexar County, 16 Tex. Civ. App. 673 , 40 S. W. 145 ; City of Sherman v. Shobe, 94 Tex. 127 , 58 S. W. 949 , 86 Am. St. Rep. 825 ; Herring-Hall-Marvin Co. v. Kroeger, 23 Tex. Civ. App. 672 , 57 S. W. 980 ; School Dist. No. 4 of Marathon v. Gage, 39 Mich. 484 , 33 Am. Rep. 421 ; Hightower v. Slaton, 54 Ga. 108 , 21 Am. Rep. 273 ; Chamberlain v. Watters, 10 Utah, 298 , 37 Pac. 566 ; Skelly v. Westminster School Dist., 103 Cal. 652 , 37 Pac. 643 ; Kein v. School Dist., 42 Mo. App. 460 ; Millison v. Fisk, 43 Ill. 112 ; Bivens v. Harper, 59 Ill. 21 ; Clark v. Mobile School Com’rs, 36 Ala. 621 ; Board of Education of City and County of San Francisco v. Blake [Cal.] 38 Pac. 536 ; Dollman v. Moore, 70 Miss. 267 , 12 South. 23 , 19 L. R. A. 222; Bulkley v. Eckert, 3 Pa. 368 , 45 Am. Dec. 650 ; Born v. Williams, 81 Ga. 796 , 7 S. E. 868 ; Bank of Southwestern Georgia v. Mayor, etc., of Americus, 92 Ga. 361 , 17 S. E. 287 ), Buchanan, as the assignee of such fund, cannot, against his consent, be deprived of such security ; and it can make no difference whether the garnishee knew of such assignment when the writ of garnishment was served or not. One to whom a fund exempt from garnishment is due, can waive the exemption; but, unless he does so, his debtor cannot. City of Sherman v. Shobe, supra; Gilbert Book Co. v. Pye, 43 Tex. Civ. App. 183 , 95 S. W. 10 .
Therefore we overrule the motion, and direct the court below in trying the case to determine: (1) Whether the alleged assignment was made to Buchanan, or, which is the same thing, to his attorney for him; and (2) whether the debt, which the assignment was made to secure, has been paid; and. then, if the first question should be answered in the affirmative, and the second in the negative, to enter judgment in favor of Buchanan, the intervener, against the garnishee for all the money due the Read Land & Lumber Company on the assigned contract which it had on hand when the writ of garnishment was served, and against the A. B. Spencer Lumber Company, garnisher, for all costs incurred in this proceeding.
With such directions to the trial court, the motion is overruled.