The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-09

had been levied upon the land,
in which suit judgment by default
was entered and the attachment lien
toreclosed, and it was by virtue of this
judgment the order of sale had been is
sued. Collins claimed to be married
man and the head of a family, and as
such was occupying the land as home
stead at and before the levy OF the at
tachment. Appellants moved to dis
miss the suit because the district court
OF C0ryeu county had no jurisdiction,
for the reason that the writ was return
able to the court from which the order
OF sale issued, and also plead to the iu-
risdiction on the same ground; answer
ing further by general denial and that
the homestead issue was res adjudicata
by reason of the Judgment foreclosing
the lien. Held: Appellee was not con-
cluded as to his homestead rightB by the
decree OF the county court Of Galveston
county foreelosing the attsc lment lien
on the land. No such issue vas made
or sdiudieated in that case. willis q
Matthews, 46 Texas 4S3.)
Here the injunction restrai ned a sale
OF the particular property described in
the order OF sale. This ord of sale
commanded the sheriff q Coryell
county to sell the specific property,
hence, the effect Of the iDjunc, on was to
suspend the operation Of the process I'M
I'll such time as the questions raised by
the injunction suit might be deter
mined. In this respect there is differ
ence between an order OF sale and an or
dinay execution; the one commands the
sale OF particular property and does not
become operative as an ordinary execu-
ton until the sale is made, and not then
uniess there is a balance remaining un-
paid upon the judgment. Whereas, en-
joining @ sale under an execute IN when
the validity or regularity of the
writ is not questioned, does not sus-
pend the operation of the PROCESS
but the sheriff may by virtue Of he writ
levy upon and sell other property of tho
defendant therein TO satisfy tia judg-
ment.
Here the proceeding by injunc ion not
only staid or suspended the process, but
also questioned It's validity and regular
ity. In such case the statute is
imperative, the writ Of injunction must
be returned to the court from which the
order of sale issued. (Rev. Stats, Art.
ESQ; Hendrick VS.. Cannon, 2 Texas,
80; Winnie VS., Grayson, Texas, 800;
Cook VS.. Baldridge, 80 Texas, 25O.(
Undoubtedly the district court of Cory,
ell county had no jurisdiction, aud
erred in overruling the appellants ex-
ceptions and pleas. Reversed and dis
missed.
James A Mckee ct al. VS.. Tom Brooks:
from Hill county. Willie, C. i, 4 suit
against United States marshal and his
sureties for a trespas, committed by
him under color OF his Office is ali ,tion
under articles 4S3 and 7S3 Of the Revised
Statutes of the United States and NAV
also involve a construction of the two
succeeding articles, and as such arises
under the laws of the United States and
is removable under the act of Congress
OF March 3, 1875. Reversed and re-
manded.
Schneider Il Davis vs. Fred dc Smith;
from Parker county. Walker, p. /,
Adopted. The following are the ON
illusions of facts held by the Co. TT:
THAT on the 10Th day Of December, 1883,
the plaintiffs. 5thneider u Davis, were
creditors ii tho firm of Engstrum a.
Hooper; that at that time EnRstrum 4
Hooper owed the plaintiffs the DEBT
sued on by them in this cause. That At
that date plaintiff had no lien on the
property afIerward levied on by the at.
tachment subsequently sued out; that
on That tday, December 10, 1888, SAID
Hooper sold to Engstrum, his partner,
MS Hooper, Interest in the goods levied
on by plaintiff attachment afterward,
and that the partnership between said
Engstrum q Hooper was on that day
actually dissolved; that this sale and |
dissolution OF partnership was real and
IN good faith, and free from any in |
Tended fraud and the court concludes
hat this want of fraud is an ad- |
mitted fact and this admission is evil |
denced by the statement OF agreed facts |
read In evidence. Conclusions of law
formed on above conclusion of facts, |
and upon agreed facts:
First-The law is that the property
levied on by plaintiffs attachment did !
not belong to Engstrum ~ Hooper at date
Of levy, January IL, 1884. That at that
late neither EnRstrum nor Hooper |
owned or had any right in or TO the |
property. That before then said prop- |
3rty had passed into the hands, rightly |
and legally, OF Fred deSmith, the as
,ignee, for the benefit OIL
tngstrum's creditors and that |
peh's levy was Invalid and |
Held: Under the issues and facts Of this |
'ause II was not essential to the correct
ness OF the conclusions of law found by |
he judge that he should have found as |
conclusion Of fact that the firm and |
=. Il III. aud the individual members
de sold out his interest In the business
o his partners. Ii is held in Blum W.
Wellborne, 5S Tex, l64, "that no act of
he assignee nor of the assignor after
.he assignment is made or preceding il,
but even in contemplation of IT, how
over fraudulent the act may be, shall di-
vest the right of the creditors to have
.he estate administered for their benefit
IN accordance with the spirit OF the
statute The point urged by
appellant under the various
assigned errors ~, in effect.
that Notwithstanding the transactions
was bona tide and fairly intended as be-
tween the parties to IL, yet as It with
drew partnership effects, such trgnssc-
ton constituted a constructive fraud on
The rights of the creditors of the firm.
Tho ABOVE quoted decision applies, and
must seek the enforcement |
li their debt against the assets of tho 1
hrm in the manner provided for under |
.he law regulating assignments and in !
.he ordinary modes provided for under |
he general laws as creditors generally. I
ihey cannot subject the property TO at |
.achment Affirmed.
S