3. Garnishment Trial Without Issues Formed-Presumption.— Where it does not appear from the record that any issues, either written or verbal, were made up in a garnishment trial, but the judgment recites that both plaintiff and garnishee appeared by their attorneys, and that all matters of fact as well as of law were submitted to the court, it will be presumed that the parties did, by consent, form the necessary verbal issues, and the garnishee can not complain for the first time on appeal that the record does not show that such issues were made.

4. Garnishment-Objection as to Venue Waived.-Objection that the trial in a garnishment proceeding was bad in a county other than that of the garnishee's residence, comes too late on appeal.

APPEAL from Wichita. Tried below before Hon. P. M. STINE.

J. A. Templeton, for appellant.-1. The court erred in refusing to discharge the garnishee, and in rendering judgment against him; there being no affidavit filed controverting his answer. Rev. Stats., arts. 192, 193, 211, 217; McRee v. Brown, 45 Texas, 503; Jemison v. Scarborough, 56 Texas, 358; Railway v. Terry, 50 Texas, 129; Ellison v. Tuttle, 26 Texas, 283; 1 W. & W. C. C., sec. 1194; Drake on Attach., sec. 659.

2. The note described in the garnishee's answer was negotiable. Tied. on Com. Paper, secs. 24, 25; 1 Dan. on Neg. Inst., secs. 88, 89; Wade on Garnish., sec. 464.

3. There was no pleading which would authorize the court to hear evidence impeaching or controverting the garnishee's answer; and in the absence of such pleadings, no evidence which may have been introduced will be considered in support of the judgment. Hall & Jones v. Jackson, 3 Texas, 305; Paul v. Perez, 7 Texas, 338.

Flood & Cobb, for appellee.-1. The note given to John T. Craig as assignee (under a void assignment) was nonnegotiable and subject to garnishment. 1 Dan. on Neg. Inst., 41; 4 Laws. Rights and Rem., 1455; Munzer v. Daniel, 19 Wall, 560; Salinas v. Wright, 11 Texas, 287; Drake on Attach., 575.

2. It is too late to object, for the first time, in the appellate court, that issues were not raised by the pleadings in the garnishment proceeding. Frank v. Frank, 6 Mo, App., 588; 2 Wade on Attach, and Garnish., sec, 392.

HEAD, ASSOCIATE JUSTICE.-Appellee T. C. Wilson sued C. W. Israel & Co., in the District Court of Wichita County, for a debt amounting to $2818.85, and on the 16th day of December made affidavit and gave bond to obtain writs of garnishment against J. T. Craig, the State National Bank of Fort Worth, and the City National Bank of Fort Worth; and on the 30th day of December, 1887, plaintiff filed an additional affidavit and

application to obtain a writ of garnishment against appellant, D. D. Swearingen, whose residence was alleged to be in Hardeman County, Texas; but to obtain this garnishment no additional bond was given.

Appellant first filed his motion to quash the garnishment against him upon several grounds, among which was the failure of appellee to give bond at the time the garnishment against him was sued out. This motion does not appear from the transcript to have been acted upon, unless the following entry therein should be taken as a part of the record to show that this had been done, to-wit:

182. T. C. Wilson v. D. D. Swearingen, garnishee. Motion to quash writ of garnishment and dismiss suit. 1890. Overruled 5d 3 w."

Cobb & Boyd.
November 12,

On April 24, 1888, appellant answered the writ of garnishment, and after denying any indebtedness to defendants, or either of them, in the usual form, added to his answer the following: "Defendant D. D. Swearingen, the garnishee herein, further answering, says, that on or about the day of May, 1886, he purchased from one John Craig, who was acting as assignee of C. W. Israel & Co., or J. N. Israel and C. W. Israel, certain bank fixtures for the sum of $800, and thereupon gave his promissory note for said sum, payable to said John A. Craig as assignee of C. W. Israel & Co, or J. N. Israel and C. W. Israel. That said note was not payable until all litigation between John A. Craig aș assignee and the creditors of said bank was settled. Defendant says that he does not know who is now the owner of said note herein referred to, but is informed that said note has been transferred by said Craig to other parties. Wherefore he asks that the said John Craig, as assignee as aforesaid, who is a resident of Clay County, Texas, be made a party to this proceeding, and that citation issue to him commanding him to appear and answer whether or not he as assignee is the owner of said note, and if not, then to answer who is the owner of said note. Defendant asks that he be allowed a fee of $50 as attorney fee for preparing an answer in this proceeding."

The record does not show that Craig was ever served with citation or appeared in the case. On the 19th of November, 1890, judgment was rendered against the garnishee for the sum of $770, with interest from the 14th of February, 1886, at the rate of 10 per cent per annum, aggregating the sum of $1135.75, and in favor of appellant for all costs, including the $50 attorney fee claimed in his answer, and adjudging that this judgment be a bar in his favor against all liability upon his debt to C. W. Israel & Co. This judgment recites that both plaintiff and garnishee appeared by their attorneys, and that all matters of fact as well as of law were submitted to the court, and the court, after hearing the evidence and argument of counsel, and being fully advised in the premises, finds that the garnishee D. D. Swearingen was indebted to C. W. Israel & Co. as above set forth. No affidavit seems ever to have been filed controvert

ing the answer of the garnishee, nor does it appear affirmatively from the record that any issues, either written or verbal, were made up under the direction of the court, as required by the statute. It does not appear from the record that the garnishee ever made any objection to the trial of the case in Wichita County on account of his residence in Hardeman. No statement of facts or special findings accompany the record.

We are of opinion that the purported copy in the transcript from the motion docket should not be treated as a part of the record. In the case of Stark v. Miller, 63 Texas, 164, it is said: "The judge's notes are for his own convenience and that of the clerk making the entries, and form no part of the record, and in case of a discrepancy between these notes and an entry in the minutes, the latter would prevail." Whittaker v. Gee, 63 Texas, 435; Eastham v. Sallis, 60 Texas, 576. We think the only effect that should be given to this entry would be to enable the parties to have an order entered nunc pro tunc showing the action of the court upon this motion. Ximenes v. Ximenes, 43 Texas, 458.

The record not showing that the motion was called to the attention of the court below, or that any objection was insisted upon by the garnishee to the alleged irregularities in obtaining the garnishment, it will not be necessary for us to consider several interesting questions presented by the brief of appellant.

The action of the court in proceeding with the trial of this case without requiring the issues to be formed as required by the statute certainly presents grave irregularities, but we are not prepared to hold that they are such as must be deemed fatal to the judgment. It seems that appellant entered into the trial without making any objection on account of the failure of appellee to file a controverting affidavit, and without taking any steps to have formal issues made. The contest seems to have been waged not to test the truth or falsity of any of the statements made in the answer of the garnishee, but only to show that by reason of the facts therein stated the note therein named as due to Craig, assignee, should be held liable for the debts of the assignor C. W. Israel & Co., and in such case it does not seem to us that a controverting affidavit would be necessary. Appellee did not controvert any of the statements made in the answer, and he therefore could not have sworn that the answer of the garnishee was not correct. See Moursund v. Priess, 84 Texas, 554.

The failure to form the issues before entering into the trial, however, presents a more difficult question. It has been held that our statute in such cases does not require formal pleadings (Insurance Company v. Willis & Bro., 70 Texas, 12; Davis & Bro. v. McCormick, 2 Willson's Civil Cases, 628); and it has also been held that these issues may by consent be joined verbally and need not be in writing (Kelly v. Gibbs, 84 Texas, 143); and after a careful consideration of the question we are of opinion,

that under the recitals in this judgment we ought to presume that the parties did by consent form the necessary verbal issues to sustain it, and that appellant having gone through the trial without objecting to the manner of proceeding, should not now be heard to complain that the record fails to show that the necessary issues were made. It was as much his duty to see that the necessary issues were formed as it was that of his adversary.

We think it clear that the objection that the trial was had in a county other than that of the residence of appellant comes too late when presented for the first time in this court. Bonner & Eddy v. Hearne, 75 Texas, 251. We are therefore of opinion that the judgment of the court below should be in all things affirmed.

Delivered January 24, 1893.

A motion for rehearing was refused.

Affirmed.

J. T. BRACKENRIDGE ET AL. v. W. E. COBB ET AL.

No. 76.

1. Execution Sale Simultaneous Issuance of Executions to Different Counties.-Executions issued to different counties at same time and on the same judgment. Under one of these the levy and sale in question was made, and levies subsequent to the first levy were made under the others. Held, that such irregularity did not render the levy and sale in question void; and these matters not appearing to have depreciated the price of the property sold, did not afford ground for setting aside the sale after the lapse of more than four years.

2. Same-Purchase at Execution Sale not Abandoned by Subsequent Purchase.-The purchaser at an execution sale does not abandon his title thereunder by subsequently buying the land under a void deed of trust made by the defendant in the execution, where the latter purchase was in compromise of litigation about the validity of the deed of trust, and was intended to strengthen the title already acquired.

3. Same-Sheriff not Disqualified by Relationship, When.-A sale under execution is not void because the sheriff making the levy and sale is a brother-in-law to one of the defendants in the execution.

4. Same Equitable Relief Against Execution Sale Denied, When.-Purchasers under a junior judgment are not entitled to equitable relief against a prior and valid execution sale of the property, where they have delayed more than four years in bringing suit, and do not offer to do equity by tendering the purchase money and expenses paid by the prior purchaser.

APPEAL from Cooke. Tried below before Hon. D. E. BARRETT.

The conclusions of fact found by the trial court, and adopted in the opinion rendered on this appeal, are as follows:

Vol. II. Civil-11

"1. That on October 9, 1885, the First National Bank of Austin, of which plaintiff is president, recovered in the District Court of Travis County a judgment for $13,071.12, besides costs and interest, against the Stone Cattle and Pasture Company, J. W. Wilson, John H. Stone, J. W. Sacra, H. Hulen, D. H. Phillips, T. M. Rolls, and F. J. Hall, upon a note dated December 4, 1884, executed by said defendants and S. A. McAdams.

"2. That an execution was issued on said judgment within less than twelve months after its rendition, directed to the sheriff or any constable of Travis County, and that the same was returned, not executed, because no property found.

"3. That an alias execution issued upon said judgment October 12, 1889, directed to the sheriff or any constable of Cooke County, which was on the 31st of October, 1889, levied on the lands in controversy, as the property of J. W. Wilson, and the same were sold under said execution to plaintiff for the sum of $137, and for which said sheriff executed to plaintiff a deed on December 3, 1889.

"4. That afterwards, on March 8, 1890, another execution issued on said judgment, directed to the sheriff or any constable of Cooke County, which was levied upon said lands on March 10, 1890, as the property of said J. W. Wilson; and upon the first Tuesday in April, 1890, the same were sold under said execution and levy to said J. T. Brackenridge for $45, and upon the same day of said sale said sheriff executed and delivered to said Brackenridge a deed to said lands. At both of said sales Brackenridge purchased for the benefit of the bank, and took the deeds in his own name as a matter of convenience.

"5. An abstract of said judgment was filed for record, and recorded in the judgment record of Cooke County, on October 10, 1885, and was also indexed in the index to said record.

66

6. That on the 4th day of April, 1885, J. W. Wilson executed to C. R. Smith, trustee, a deed of trust upon about 6000 acres of land, including the lands in controversy, purporting to be made to secure a note for $43,000, of that date, executed by said Wilson to Gregory, Cooley & Co. Said deed of trust was duly recorded in the mortgage record of Cooke County on same day it was executed.

7. That on August 28, 1885, in the District Court of Wise County, Thomas Trammell & Co. recovered judgment for the sum of $8924.70, with interest and costs, against the Stone Cattle and Pasture Company, J. W. Wilson, John H. Stone, F. J. Hall, H. Hulen, J. W. Sacra, Phillips, Rolls & Co. (a firm composed of D. H. Phillips, J. M. Rolls, Richard McCubbin, S. A. McAdams, and Isaac Cloud), W. E. Cobb, and the Ritchey-Gooch Live Stock Company. Said judgment recites that the Stone Cattle and Pasture Company was the principal, and that said J. W. Wilson, John H. Stone, F. J. Hall, H. Hulen, J. W. Sacra, and Phillips, Rolls & Co. were sureties, and that W. E. Cobb and the Ritchey-Gooch