Wert v. Schneider & Davis

Citations

• 64 Tex. 327

Syllabus

<p>1. Record — Exhibits — Practice. — A certiorari was granted to appellant to perfect the record by bringing up to this court a certified copy of an assignment; appellees moved to strike it from the files on the ground that it constituted no part of the record in the court below. Held, that it must be considered a part of the record, for its contents were in part recited in appellees’ pleadings, and it was made a part of their pleadings, though not attached as an exhibit; it was also made a part of appellant’s pleadings, and they purported to attach it as an exhibit; the record, too, showed that the court below sustained objections to the assignment, which could not have been done unless it was a part of the pleadings.</p> <p>3. Extraneous proof — Assignment.— A court sustaining objections to an assignment before hearing the facts of the case must have done so on the ground that the assignment was void upon its face; it could not have taken into consideration any extraneous facts.</p> <p>3. Acknowledgment — Deputy clerk.— The Revised Statutes (secs. 1104 and 4305) name the district clerk as an officer before whom acknowledgments may be taken, and provide that his deputy may perform all such official acts as may lawfully be done by the clerk himself. It results that the deputy can take acknowledgments in all cases where his principal is authorized so to do.</p> <p>4. Assignment,— As the statute allows creditors six months within which to consent to an assignment, it must have contemplated that this length of time would not be an unreasonable one within which to sell the property of the estate; and a provision in an assignment, authorizing a sale within a shorter period than six months, cannot be said to cause unreasonable delay. Even if the assignor had provided, in an assignment otherwise valid, for an unreasonable delay in winding up his estate, the law would merely have disregarded his wishes in that respect and had the estate settled within the time prescribed b