1875.] COOK v. STEEL. 55
Opinion of the court.
ages assessed without a jury, judgment being rendered
.or $260.85 and costs against Carmichael, and ordering the
sale of tile three bales of cotton, and judgment against
Cook and his sureties on replevin bond for $132, the appraised
value of the cotton, on his failure to deliver the
cotton to the sheriff, and for costs in the sequestration proceedings.
Cook filed a motion to set aside the judgment for various
reasons: ignorance of the effect of an act of the Legislature
authorizing a special term of the court at which the trial
was had; that he believes he has a good and lawful defense
against said action; "that he became the purchaser of the
cotton sued for at constable's sale under a valid, subsisting,
unpaid judgment against Carmichael, in good faith,
for a valuable consideration paid by him therefor;" questioning
the operation of the mortgage as against the cotton
not grown at date of its execution. Cook also moved in
arrest of judgment, alleging the insufficiency of the mortgage
declared on to bind the cotton, and that the fiial
judgment could not be assessed without the intervention
of a jury.
The motions to set aside the judgment by default, and
in arrest of judgment, were overruled.
Cook prosecuted his writ of error, assigning errors: 1.
Error in rendition of judgment final without the intervention
of a jury; 2. Overruling his motion to set aside the
judgment; 3. Overruling the motion in arrest of judgment,
and 4. Other errors apparent on the record.
R. S. Hightower, for plaintiff in error.
TV. H. Pope and H. McKay, for defendant in error.
REEVES, ASSOCIATE JUSTICE.-It is shown that defendant
Carmichael accepted service, and admitted, as appears from
his written acknowledgment waiving service of the petition,
that he had nothing to say why the plaintiffs should
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 August 1, 2014.