1875.] DE FOREST V. MILLER. 35
Opinion of the court.
DEVINE, ASSOCIATE JUSTICE.-The proceedings in this
cause originated in a seizure under an execution on behalf
of appellants of the goods of Hugo Fox, to satisfy a
judgment against Fox and others. Appellee, Miller, made
claim, verified by affidavit, to one-half the goods taken in
execution, claiming to be a partner in the business, and the
owner of one-half of the stock, gave the required bond, and
received the goods from the sheriff. The claim of appellee
being docketed, and an issue between the parties being
made, by order of the presiding judge, and a trial was had,
a verdict being found in favor of the claimant; a judgment
was rendered that plaintiffs take nothing by their
The plaintiffs' motion for a new trial being overruled,
the cause is presented on appeal.
The first, second, and third assignments of error may be
taken together and considered in substance as one assignment.
They present, as causes for a reversal, the refusal of
the judge to render judgment by default on motion of appellants;
permitting the claimant, Miller, to tender an issue
after the day set for taking defaults; and " in directing
plaintiffs to make up an issue with the defendant and try
the said cause, as if no motion had been made for judgment
The bill of exceptions taken by appellants on these questions
shows that on the 5th of October, 1872, (the day for
the taking judgments by default,) plaintiffs appeared by attorney,
presented to the court issues previously filed in the
cause, without notice to the opposite party, and asked for
a judgment by default. Claimant's counsel at the same
time appeared, asserted he had no notice of any issues
being made up, and asked that the court should direct the
issues to be formed. The court not being satisfied as to
the proper action to be taken, held the subject under consideration.
On the 16th of October appellant's counsel
again called the attention of the court to the subject, and
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 February 14, 2016.