Seawell v. Lowery

• Decision Date: 01 January 1856
• Citation: 16 Tex. 47
• Parties: STERLING T. SEAWELL v. S. & A. LOWERY.
• Court: Texas Supreme Court

16 Tex. 47

STERLING T. SEAWELL

v.S. & A. LOWERY.

Supreme Court of Texas.

1856.

Where, on the death of the defendant in an attachment, a garnishee was appointed administrator, and filed a separate answer in each capacity, but prayed a writ of error in his capacity of administrator only, it was held that he could not assign errors in his capacity of garnishee.

Where the trustee in an assignment for the benefit of creditors was summoned as garnishee, and, the defendant dying, was appointed administrator, and answered in both capacities, but, judgment being rendered against him, prayed a writ of error in his capacity of administrator only, the court said: And if, as he (the plaintiff in error) now insists, the assignment was a legal and valid conveyance, divesting the title of his intestate and vesting it in the assignee for the benefit of creditors, the property so conveyed cannot be assets in his hands, and he had no right to the possession of it as administrator. If, on the other hand, the conveyance was fraudulent and void as to creditors, the fraudulent vendor or assignor could not take advantage of the fraud, or avoid his own deed on that ground; nor, it has been held by this court, could his administrator. [11 Tex. 556;21 Tex. 133;29 Tex. 450.]

See this case as to the necessity of a statement of facts or bill of exceptions.

Where the entry is so indefinite as to leave it uncertain which of two pleas was struck out, and there is no exception, motion, statement of facts, bill of exceptions or other matter in the record, by which the entry can be made certain, the ruling will not be revised on error.

Quære, where the parties are both non-residents, and an attachment is obtained and levied on property which is ordered to be sold in satisfaction of the judgment, whether it would be a fatal objection that the petition did not allege that the defendant had property subject to the attachment.

In a suit on a promissory note, an affidavit of the amount due from the defendant to the plaintiff is a substantial compliance with the statute which requires the petition to be sworn to, where attachment and other similar process is sought. [13 Tex. 368. 14 Tex. 1;15 Tex. 568;18 Tex. 289;24 Tex. 225.]

Error from Calhoun. Suit to spring term, 1854, by the appellees, of the city of New York, against William R. Rawlins, late of Calhoun county and state of Texas, and now a resident of the state of Louisiana, on a promissory note dated New York, and payable at New Orleans; no allegation of property in this state, but prayer for attachment against the property of defendant; affidavit of the amount due, etc.; bond; writ of attachment levied on lots 1, 2, 7 and 8, in block 84, in the city of Indianola, county of Calhoun, etc.; allegation that Sterling T. Seawell and others, of said county, are indebted to said Rawlins, and prayer for a writ of garnishment; Seawell and others cited as garnishees; spring term, 1854, death of Rawlins suggested; Seawell answers as administrator of Rawlins, by a general denial, and prayed that he have leave to administer the property attached and garnished, as in other cases; same day Seawell answers as garnishee, admitting the possession of certain property, including the property attached, and pleading an assignment thereof by Rawlins to him in trust for the payment of a schedule of debts, including the one sued on. The assignment and schedules of the property and debts were attached. The assignment covered the balances on the books of said Rawlins, who had been a merchant. The cause coming on for trial, on motion of plaintiff's counsel “it is ordered that the second plea of the defendant Seawell be stricken out of the pleadings, and the parties having waived a jury, the court having heard and considered the evidence, decreed that the plaintiffs recover of the defendant the sum of sixteen hundred and ninety-eight dollars and ten cents and all costs, etc.; and it is further ordered, adjudged and decreed, that an order of sale issue commanding the sheriff to sell and convey the property seized under the attachment in this cause, as under execution, to satisfy the judgment rendered herein; and that Sterling T. Seawell be receiver and commissioner to receive and collect all the claims and demands shown and exhibited by the garnishees in this cause; and that after the payment of all the reasonable expenses of collection, he appropriate the residue to the discharge of whatsoever balance may remain unsatisfied of the judgment herein, after the sale of the property attached, and that he account to this court how he has executed this trust.”

Petition for writ of error by Seawall as administrator of Rawlins.

There was no statement of facts nor bill of exceptions.

The assignment of errors was as follows:

1st. The petition was not sworn to as required by law, and the prayer of the garnishee to set aside and dismiss the attachment was refused.

2d. The...