Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-01

set forth No affidavit seems ever to hive
been filed cUnirUyerting the answer ~ the
garnishrp nor does n appear ahiunnuvely
from The record that any. ISSUES. either
written or verbal. were made up under the
direction OF the court as required by tue
statute. II does not appear nom the record
that the .garnishee ever made any olgec-
county ON account OF his residence I'm Hnr-
demun. No statement Of facts or special
hudings accompany the record.
OPINION.
We arc Of opinion that the purported copy
IN the transcript from the motion docket
should not be treated ms n part OF the
record In the case Of Stark VS. Miller. b3
Texas, lGi. 10 IS said: 1.-THE judges notes
are for his own convenience and that OF
part Of the record. ana IN cnse Of distTe-
pnhcy between these mites and uu entry IN
The minutes the latter would prevail.
Whitaker w. Gee, 63 Texas, 49,. Eastman
W. SALES. W Texas $40. We thinls the
only effect that should be given to tlhs
entry would be to enable The parties to have
an order entered nunc pro tune showing
tNimpnos vs.. Nimenps 43 Hexas. 4lSl The
recprd not showing the motion was called to
the attention OF the court below, or that
any objection was Insisted upon by the
gMuishee to the alleged irregularities ia
ObtiunlnK the garnlshment t win not be
necessary Tor us TO consider several inter.
esung questions presented by the brief OF
The action Of The court Id proceeding with
the trial OF this case without requiring the
issues To be formed as required by the
statute certainly presents grave irregulRri-
ties but We are not prepared to hold that
theS are such "a must be deemed fatal To
the Judgment. II seems that appellant en-
tered INTO the trial without making any ublpc
ton on account ~ the failure ~ appellee
TO nle cOntrOyerting affidavit aud without
taking any steps 10 have formal issues
made. The contest seems TO have been
a. fna lie Ful gfslH
of the statements made In the answer Of the
K3Fmshee. but only TO show that by reason
or the fucts therein stated the note therein
nhiued ~ due to Craig. assignee. should be-
held liable for the debts of The assivnor g.
W, Israel a CO., and iu such case II does
not seem to us that "a contrUyertiug uf-
hdavt would be- necessary. Appellee did
not vontrovert any ~ the statements mudp
~ the answer aud ne therefore could not
have sworn that the answer Of the garnshpe
WI MOI correct lSce Muursnd vH. Pricss.
~ Texas, Bob. The fnilurc tu form the is-
sues before entering into the trial however
prcsvhts more difficult question. II has
been held that out statute in such eases
does not require formal plcndinps tIns
Co W. Willis 4 Bro 40 Texas ~: Davis
brO. vs. Mccormick, GO. APP G. g.
U2Sii und " has also been held that these
ISSUES may by consent joined verbally and
need not be- la writing 1[clley w. Gibbs
~ Texas. 80; and after q cnipful rOusid.
trulion of The question we are OF opinion
mat under the recitnls Ia this Judgment
a " lt'fAi.' AiWl lNf NhlllfN Nlllt
by consent. FORM the necessary verbal hi.
sues 10 sustain IL, and that apppllNut hny.
ing gone through the trial without obiprHnu
IA the manner of proceeding should NOS now
pc heard 10 cumpluiu thar The record fails
10 snow mat a. necessary ISSUES were
made 10 was as much his duty 10 see
thut the necessary ISSUES were formed
~ u was that ~ bis adversary
We think Il clear that the objection
that the trial was had In q county other
than that ufthe residence Of appellant comes
too late when presented for the first uua
~ ms court niouucr & Eddy vs.. Hcnrne
40 Texas 2J)
We are therefore OF opinion that the
judgment OF tn court hpl1w should be la
all things affirmed. tSgntd
HEAD. Associate Justice.