Seawell v. Lowery

16 Tex. 47

• Court: Texas Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Wheeler, J.

It appears by the record, that the plaintiff in error answered to the action, in separate answers, and in the two distinct capacities of administrator and trustee. He prosecutes this writ of error in his capacity of administrator, and not as trustee, or assignee in the deed of assignment for the benefit of creditors. The two capacities are as distinct as if attached to different persons. It is clear that the administrator of Rawlins cannot assign errors in the judgment against the assignee. And if, as he now insists, the assignment was a legal and valid conveyance, devesting 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 so 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. (Cobb v. Norwood, 11 Tex. R. 556.)

It is unnecessary to enter upon an examination of all the questions, discussed in argument by the plaintiff in error, for the reason that they are not presented by the record in a manner to require revision. There is no bill of exceptions or statement of facts. The record discloses but a single ruling of ihe Court, upon any question of law, arising in the progress of the cause: that is the striking out of the defendant’s “ second pleaand that is not specially assigned as error. But if the assignments of error may be held to embrace it, we are not informed which of the answers filed in the case was intended. Both were filed of the same date, and there is nothing in the record to indicate which of them it was that was stricken out. The Clerk, in copying them into the record, must necessarily give one the precedence, in order. But the mere fact of Ms adopting a certain order in making out the transcript, is no evidence that the answers were presented to the Court below in the same order. The rights asserted in them were adverse. Both could not he maintained. We are left to conjecture which of them it was, that was stricken out. And nothing can be better settled, than that, to authorize a reversal of judgment, it must certainly appear that the Court has erred, and in what particular it has erred. It must not be left to conjecture; but the party asking a reversal, as has been significantly said, must put Ms finger on the error. The assignment of errors is expressed in very general terms, and without a direct and certain, application to the particular rulings complained of; for the reason, doubtless, that it does not appear by the record what rulings there were in the case. The same reason will prevent this Court from attempting their revision.

If it were necessary, to entitle the plaintiff to his judgment, that he should allege that the defendant had property, subject to the attachment or garnishment, he has done so, in what is styled his “ prayer for garnishmentwhich is in the nature of an amendment of his petition, and must be so taken and considered.

If was not necessary that the petition should have been sworn • to. The affidavit, upon which the attachment issued, contained the substantive traversable matter of the petition ; and this has been held a compliance with the statute. (Morgan v. Johnson, lately decided at Austin, (15 Tex. R. 568,) and see Schrimpf v. McArdle, 13 Tex. R. 368.)

We are of opinion that there is no error in the judgment; and it is affirmed.

Judgment affirmed.