The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-10-16
THE HIGHER COURTS.
COURT OF APPEALS.

j. 5. Mclcndon vs.. King McRae &
Co.; from Robertson county. Opinion
by Wilson, ]. Appellant was garnished
upon judgment obtained by appellees
against Mccall & Hicks. lie answered
that prior to the service Of the garnish-
ment upon him, Mccall & Hicks had as
signed TO HIM all their property which
was subject to execution, for the benefit
of conscnting creditors; that he had ac.
ccptcd the trust, had executed and had
approved the required bond as assignee,
ana had taken possession OF the prom
orty assigned; that there was i'm his
hands S2,NiA2, the proceeds of said
property; that the aggregate of the
claims of cousenting creditors amounted
to S5,l4h, and that the assets in his hands
was insufficient to pay the debts of the
consuming creditors. The decd OF as
sisnmenJ was made part OF his answer.
IL contained a provision as follows:
Nv hen said assignee has thus paid of
and discharged all Of such claims of
'uch creditors for the benefit of whom
this assignment IL made, he shall nav
over 10 us whatever surplus or money
romans, in his hands, If any"
AppelleeS demurred specially To an.
pellants answer upon the ground that
the deed of assignment was fraudulent
and void upon its face, because of tho
above quoted provision. The demurrer
was sust. lined and Judgment was rem
dered against the garnishee.
The deed of assignment was executed
under the third section of the act of
March n, 1873. (RsVised statutes, app, u.
%. No other objection except the one
Inv s.l
urged against the deed, and IL appeara
in all respects to be in accordance with
the statute.
The question presented by the special
demurrer has been directly passed upon
ny our supreme court, and liz now an
open question in this court. In Keatinp
vs.. Vaughan, g Texas Law Review. Xl5l
Justice StavtOn discussed the question
lully, and the court held that sucn pro.
vision in decd of assignment as the
one We have quoted, did not render the
deed void or in anyway affect its = lidity
or operation, but that the provisions ofthe
statute under which the decd was made
controlled the matter. A motion for re.
nearing was made in the case and is
now overruled. The case of Lawrsncs
w. Norton, decided by the circuit court
of the United States at Dallas, Deem
Dor, lSs2, and cited by counsel for an
pellees, holds contrary doctrine 10
that announced IN heRtIug W. Nuuphun,
supra. We shall follow the decision al
our supreme court, not only hrcauso wo
regard II ms n higher authority .npn q
question OF this uatutn than
the decision OF tan circuit conrt
hut because We hilly concur In
the correctness uf il. because the court
grred III sustaining appellocs' special
demurrer to appellants answer, the
judgment is reversed aud the cause ro-
manded.
SurpEHE COURT.
international & Great Northern rail-
way vs.. Susan 4. Smith; from Smith
county. Opinion by Willie, g. /. on
motion To strike out statement of facts
The appellee moves to strike out the
statement OF facts found in the tran.
script, because II wns fled after the mi
onrnment of the court for the term mt
which the cause was tried, and no order
allowing this TO . done had been en-
tered during the term, IL seems that a
formal order adiOurning the court
for the term had been entered mn.
the minutes had been signed, and Tie
judge OF the court had gone to his home
III an adjoining county, when, upon an.
piication OF appellants counsel, he ro-
turned, allowed n motion for leave Ia
prepare a statement OF facts within ten
days after tho adjournment OF court 70
DO hled, and granted an order