The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-11-07
THE HIGHER COURTS.
Synopsis Of an Opinion by the Supreme
Count

Court.
Austin, Texas. October 5.-Folowing is
the synopsis of an opinion delivered by the
supreme court today
PATTON d. WELBORNE VS.. MRS S. NJ.
COLLIER; certified questions In case
from Wichita county, Second district
Answered in favor of defendants below,
Patton az Welborne.
This suit was instituted by Mrs. Collier
to recover of Patton q Welborne the value
OF certain personal property taken from
her under an order OF sale issued on
judgment in favor of said defendants in
this suit.
Appellants sued Mrs. Collier on certain
promissory notes and secured judgment
thereon for principal. interest and attor-
ney's fees. also decree for the foreclosure
OF their lien on certain personal property.
The petition Of plaintiffs alleged that the
piantlils had been compelled to employ
BOYD q Oiiei, attorneys at law, to bring
SUIT for the collection of the notes. ana
That they had agreed to payrsaid attorneys
tue amount OF attorneys fees mentioned
iii said notes for their services j. i.
oliei. member of this firm. was a
prother-!h' law OF the county Judge who
tried the case.
An order of sale was issued on the judg-
ment obtained in this case, the property
was advertised as described in SAID order
and was sold by the constable without
formal levy.
Question /. Was the Judgment of the
county court void by reason of the rela-
tionship between the county Judge and the
plaihtits' attorney, Ofiel?
me original judgment in question was
not void as between the plaintiffs and de-
i.hdahts. Boyd d ofiel, plaintiffs attor-
heys, were not parties TO the suit Ii is
evident that these names were mentioned
III me petition merely for the purpose of
alleging the happening of the contingency
upon which the plaintiffs were to become
entitled to the additional 10 per cent upon
'he amount OF the notes. So much OF the
original Judgment for attorneys fees was
MUMMY. II does not appear that the at
torheys had any pecuniary interest in the
recovery. The allegation in effect is that
IN consideration OF their bringing The suit
.he piaintilis had agreed to pay them for
'helr services as attorneys the amount of
money mentioned in the notes MS attor-
heys lees No assignment of any interest
III une notes is alleged. The power of the
court TO amend the original judgment can
moi be attacked in this collateral action.
we are of the opinion, however, that If
had THIS power. (Rev. Stat, 1850.
question :. Was levy by the constable
necessary to the validity of the sale?
we are OF the opinion that it was not.
uIie OBJECT OF levy is to set apart from
me euects OF the execution debtor a sur
ilcicht amount of his property subject ia
,orced SAFE to satisfy Judgment against
Nlh'' another is TO secure the property
against It's disposition by the defendant in
tne writ during the interva! between lis
seMure ana IT'S sale. When the decree es-
tapiishes Hen upon certain specific prop,
'rty ana orders it's sale Il levy is not neces-
Sary Tor the designation of the property
"a me case of personal effects levy is
nn"tSl tor 'le protection of the plaintiff
IN the foreclosure decree. Dut IL is nor
perceived that any injury could accrue IN
lhe defendant from his being permitted IN
w., umJ'S inc possession Of the property until
Opinion by Gaines. C. l.