Cronin v. Gay

20 Tex. 460

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Roberts, J.

The Court did not err in dismissing the suit, either with or without a motion or demurrer by appellees: because neither the original nor amended petition contained a cause of action. The proceeding is anomalous. It does not adopt and pursue the remedy of garnishment, though it is somewhat analogous thereto.

As an equitable proceeding to make discovery of, and subject the trust fund to the payment of debts, it is defective in not making the cestui que trust a party, and in stating the facts of the transaction in such manner as to enable the Court to determine that the fund is liable for this debt.

Our statute has prescribed a mode of discovery as auxiliary to a suit, but not as an independent remedy disconnected from a regular suit. (Hart. Dig. Art. 735.)

Judgment affirmed.