Texas State Bank Alice v. J. B. Baker Et Al‪.‬

On Motion for Rehearing Texas State Bank of Alice contends that Baker, by filing a mechanic's lien and giving notice thereof, in accordance with Article 5453 et seq., Vernon's Ann.Civ.Stats., did not establish a cause of action against the resident defendant, McGee. We are not unmindful of Article 5463, which provides that ""the owner shall in no case be required to pay, nor his property be liable for, any money that he may have paid to the contractor before the fixing of the lien or before he has received written notice of the existence of the debt."" An owner may show that he has paid out the money due upon a contract prior to receipt of notice of the filing of a lien, Garvin v. Armstrong, Tex.Civ.App., 20 S.W.2d 358, modified, Modern Plumbing Co. v. Armstrong, Tex.Com.App., 36 S.W.2d 1011, but this does not reach the issue here raised. McGee pleaded that although he had paid the contract price to the Texas State Bank of Alice, said bank has not paid said amount to plaintiff herein, but has refused and still refuses to pay same to plaintiff. We have here a three-way controversy which should be disposed of in one suit in order to prevent a multiplicity of suits, under the provisions of Article 1995, § 4. Appellant's motion for rehearing is overruled.