34 DE FOREST v. MILLER. [Tyler Term,
Argument for appellants.
as to its true import. The suit was for an undivided half
of the entire lot. The jury, therefore, not inappropriately
regarded the entire lot as involved in the controversy, and
by their verdict in favor of the plaintiff, "for one-half the
land in controversy in the lot," evidently must be understood
as finding in her favor for the undivided half of the
lot for which she was suing.
There being no error in the judgment of which appellant
can complain, it is affirmed.
DE FOREST, ARMSTRONG & Co. V. CHARLES MILLER.
1. WHEN PLAINTIFF IS NOT ENTITLED TO JUDGMENT BY DEFAULT
AGAINST A CLAIMANT.-No judgment by default can be rendered
against a claimant of property seized under execution, and who by
giving the statutory bond has obtained possession of the property,
until after an issue is directed by the court. The act of the plaintiff,
in filing a plea without notice to the claimant before default day,
and tendering an issue, does not entitle him to judgment on default
day in the absence of an answer by claimant.
. WHEN INTEREST OF A PARTNER MAY BE SOLD UNDER EXECUTION.--The
separate interest of a partner may be seized and sold
under execution, subject to the rights of other parties, and the creditors
are not bound to wait until those rights are ascertained, but
may require the sheriff to proceed and sell. (The doctrine announced
in Warrenl v. Wallis, Lanldes & Co., 38 Tex., 228, qualified.)
APPEAL from Marion. Tried below before the Hon. M.
This case was before the court at a former term, and the
appeal dismissed, being from an interlocutory judgment,
(37 Tex., 389.) All the facts necessary to a proper understanding
of the case will be found embodied in the opinion.
.J. McKay, for appellants.
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed October 24, 2014.