The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-03-06
DECISION.
JUDGE FULMORE'S INIT TIT EF-q
DECISION OF THE MANI
CHANTS ASSiGNMENI-.n
JUNCTION ISSUES.
An Able 0piniOn-The Octopus Out
reach OF Such Proceedings
The VOID and the VOidable.

|
reach of Such Proceedings
The VOID and the Voidable.
County court. Travis county, Feb
ruary 30. 1884, F. e. Wilburn, ASST
gnee, VS.. T. r. Allen, and Sarge, Bros
The two principal issues rsice<; ~ IL;
pleas in abatement and deEy;- -: q
the respondents are: L. "
signment under. our statGyo ,.vv., -
place the property assigned in custo
dia legis. 2. That if the property as.
signed is property which does not be.
long exclusively to the assignor, but is
the joint property of himself and his
partner who fails to join in the deed
of assignment the deed passes nc
property and leaves the same subject
to attachment at the suit of creditors
That suit has been filed in the dis
trict court of Wise county involving
the validity of the assignment and
having jurisdiction to try the issue.
The county court of Travis county has
respondents or the property attached.
THE ASSIGNMENT
in this case was made IN accordance
with our statutes.
As one of the prerequisites in pro-
ceedings under the statutes statute
ry bond must be filed.
Section Of the law, places all pro-
perty assigned in cuStodia legis. by
expressly eXempting it from garnish-
ment at the suit of creditors who do
not consent to the assignment, until
the claims of consenting creditors,
and the costs of executing the assign
ments are paid. Winslett VS.. ROndal,
S1191, SI192 and S1193 Tex. ct. Apps,
civil cases.
Section 10, as amended, provides
that the district or county judge in
whose court the proceedings shall
have been filed, and having jurisdic-
ton Of the estate assigned, may, on
the application of the assignee, or of
any creditor of the assignOr or debtor,
or without such application, if the
judge see fit, at all times require, upon
such reasonable notice as the judge
may direct, the assignor or debtor
or any other person, to attend
and submit to an examination. on
oath, upon all matters relating to the
disposition made, or status of the
property of the estate assigned, etc.
The Judge may enforce attendance and
obedience to the orders made by a
writ or order directed to the
SHERIFF OR ANY CONSTABLE
commanding the arrest of the per-
sons referred to in the writ or order.
to be brought before the judge at a
time named; = y = the costs of
such proceeding to be paid out of the
estate assigned, or by the applicant for
the examination, as the judge in each
case may deem right and proper to
order.
Section 13 authorizes the district or
county Judge, under certain circum-
stances, to remove and appoint as
signeeS.
The supreme court in Blum VS..
Welborne. 50 Texas 1854, says that the
statute was intended to provide for
the equitable distribution of the pro-
ceeds of the estate of any insolvent
debtor.
The supreme court has also held that
the section of the statute which au-
thorizes the county judge to approve
the assignee's bond, simply authorizes
the performance of a ministerial act,
such as
MIGHT BE DELEGATED
to the clerk of the court, but
the sections of the statute which con-
fer powe. Is "-~f0rce attenda1ce and
answers under oath, TO io.,,.e warrants
of arrest, upon his own motion, anu.
without application, if he sees fit, have
not been adjudieated to be such au-
thority as a ministerial officer may
perform, and the statute which is
now in force has been passed since the
case arose under which such decis-
ion was made.
If the court should hold that the
assigned is not in custodia
legis-that a statute which was in
tended to put all creditors upon an
equal footing in the distribution of
the debtors estate did not do so. but
relegated them to such rights IS
superior diligence in suing out attach
ments, should give them, it would be
to hold that the law means nothing
that it is dead letter upon the statute
book.
THE SECOND ISSUE RAISED
by the pleas of respondents, presents
the further question that when one
member of a firn makes an assign
ment of the whole property that such
assignment is void, and the property
attempted to be assigned is subject to
attachment.
The question of partnership is raised
in the respondents pleading in the
district court of Wise county in the
attachment proceedings, and respon-
dents insist that that tribunal has
complete and exclusive jurisdiction to
proceed TO try that issue of fact with
out reference to any proceedings I'M
der the assignment in the county court
of Travis county.
The statute provides that no assign
ment shall be declared fraudu-
lent or void for want of an
inventory or list as provided for in
the law, that it shall not be void be-
cause of the fraud of the assignee or
asslgnor. In this case the assignment
upon it's face is valid; it cannot be at
tackled for fraud, nor because all the
assignor's estate has not been dellv-
cred to theassignee, nor
BECAUSE THE ASSIGNEE ACTS
in violation of his duty, by proceed
ings in attachment or any other pro-
ceedings which will divest the credi-
tors of their right to have the estate
administered for their benefit in ac-
cordance with the spirit of the stat
ute.
In the case of Donaho VS.. Fish Bros.
So Tex. 1874, the assignment was void
upon it's face; hence no direct pro-
ceeding against it was necessary.
Under the issues as joined in the
present attitude of the case, it is con
ceded by the demurers and pleas II
abatement. that J. w. Biting wa:
the sole owner of the goods at Auro
IA. which have been attached by res
pondents, and that S. S. Biting was
not a partner of the firm of j. w. Bit
ting & Co. Under such a state o
facts we have no doubt that the good
levied on were in the custody OF thl
| court.
But further-If it should be conced
ed that S. S. Biting, of Wise county
was a partner of J. w. Biting and
member of the firm of j. w. Bittin
81 Co., doing business at Aurora, i
] Wise county, Texas, it would follow
! as matter of law, that the firm of ,
| w. Biting 81 Co., was dissolved &
once by the assignment in this cas-
and that the assignee, F. G. Wilbur
was entitled to a joint possession
the goods with the other partner an
that no attachment at the suit OF cree