Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-11-28
THE HIGHER COURTS.
sJnopsss OF Decisions Rendered at the
Present Tyler Sitting.

SUPREME CoURr-TNLER TERM, 1856
David Wallace & Co. VS.. Bogel 6 Bro.
Appeal from Marion county This was
trial of the right Of properly in a stock OF
goods in which Wallace & Co. were plain,
tffs and Bogel & Bro. claimants, and
Judgment was rendered for the claimants.
t1e cause having been submitted to the
court both upon the law aud facts. Plain
TN had sued out writ Of attachment
against Crittenden & Kibbe, which was
levied upon a stock Vt goods found In the
posses sion Of Bogel & Bro and which
they claimed under an assignment from
the defendants in the attachment suit.
The plaintiffs theory was that
B )gel & Bro. had knowingly received from
Chttenden 4 Kbbe fraudulent assign.
ment of the goods and the court below
sustained this position, but gave iudg,
ment for claimants, because In the iudg.
ment rendered in the attachment they had
not toreclosed their lien upon the goods.
ii Id, error In case where the property
seized bad been rep eYled 1t was held by
the court that 1t was not proper for the
| judgment to order a sale OF the property,
but a general execution only should be
awarded. The defendant had right to
point out property to satisfy the iudg
ment, and might choose to point out
property other than that seized under
the writ. We think all the foreclosure
necessary l. accomplished by the recovery
Of personal judgment and that the
court below erred in finding to the con
trary. For this error the Judgment must
be reversed and is here rendered for APP
pellants, subiecting the prop rty In ques.
lion to the payment OF their Judgment In
the attachment suit. Reversed and re-
manded. Willie, CD
Thomas Foster ct oil, VS.. NJ. w. Smith
Appeal from Rockwell county. The origi.
nal petition set up as cause Of action a
Judgment recovered by the plaintiff
ag inst defendants, which had not been
paid. The amended petition set up pre-
clsely the same cause OF action. In the
former IT was alleged no execution had
ever issued upon the judgment; In the
latter, that execution had issued within a
year after its rendition, but that about
nine years had elapsed since the last one
had issued. In either case the plaintiff
was entitled TO have the Judgment
revised, in the one case because II
was dormant In the other because II had
lost les lien from want Of diligence in the
issuance OF executions. II has been held
by this court in general decisions that IL
is within the discretion ef the district
Judge to allow party to withraw his an-
nouncement of ready for trial for the
purpose of filing an amendment, and that
this discretion will not be revised upon
appeal. We think the court did not err
in holding that the suit commenced with
the filing OF the original petition, and In
not sustaining the plea Of the statute OF
limitations. Affirmed. While, G. j.
A. Zadek vs.. II. j. Dixon. Appeal
from Navarro county The original
petition in the case was filed bv A. Zadek
&, Co., firm composed Of A. Zadek and
Mrs. Bertha Cospor In accordance with
the claim made, the sureties on the claim
bond obligated themselves in case A.
Zadek & Co failed 20 establish their
right to the property levied on, to return
the same to the sheriff and pay 10 the
plaintiff in execution all damages that
might be awarded against said claimants.
The district court on the frst trial sus-
tanned motion W quash the affidavit Of
claim tl,d by A. zadek & Co but refused
TO enter judgment against the
sureiies upon the bond. This judgment
was final disposition Of these two ques-
tions unless set aside by the court below,
or remand 10 this court. The plaintiff
appealed from so much OF the judgment
as refused recovery against the sureyies,
and this court sustained that appeal but
remanded the cause for want OF such
proof as 70 the value OF the property 10
question as would authorize the appro-
priats judgment against the sureties upon
the bond. Claimants did not appeal from
the other quashing the affidavit
or assign error thereon In the
appeal taken by plaintiff. Held, The
decision upon that question wac
res adiudica and could not subsequently,
lie reopened. Further held, that the
court below did not err In refusing to
allow Mrs. Cospor TO amend the affidavit
claiming the property as her individual
properly. The suretles on the bond
obligated themselves Ia case A Iadeb
& Co. did not establish right 10 the
goods, and were not responsible for the
default OF another party. There is nc
error in the judgment, and II Is affirmed
Wllles, c. J..
J. III. Hess vs.. Dean & Kesterson. APP
o al from Camp county. When the record
shows that s special judge had been ap
pointed by the governor, and both parties
submitted 10 the Jurisdiction, this court
will presume that the appointment was
regular and took jurisdiction OF the cause
When bin Of exceptions Is tiled after The
adjournment OF court, an assignment Of
errors ba.ed upon II cannot be consider
ed. Affirmed. While Q. -.
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