J. T. Sullivan & Co. v. W. D. Cleveland et al., 62 Tex. 677

West, Associate Justice. Under all the facts disclosed by the testimony, when taken and considered together as a whole (and there is, in fact, no actual conflict of evidence, or very marked disagreement, between the parties litigant, as to what those facts really were), it is believed that the district court committed no serious error in rendering the judgment finally entered in the case as to the rights of the contending creditors.

It appears quite clearly from the evidence that the appellants, for reasons which were satisfactory to themselves, and which are fully disclosed by the proof contained in the record, changed their original purpose (if such was ever in fact their purpose) of levying diheir writs of attachment on the goods of Hollinger & Sims, on the 5th day of December, 1883.

They chose and elected to postpone for the present active measures for enforcing their writs of attachment, as was found by the court (and the finding is fully justified by the evidence), until the appellees, by superior diligence and acting, gained a preference lien over those on the attached property. This finding is, we believe, supported by the evidence adduced on the trial, and which is set out at length in the record, and as to which there is no serious disagreement between the parties. Meyer, Weis & Co. v. Oliver, 61 Tex., 585.

Nor do we believe that the district court was in error in trying these several issues between the attaching creditors as it did, under all the facts of this particular case, as disclosed by the record. Richoff v. Tidball, 61 Tex., 421. The property of the insolvent debtors had been already sold under the different writs of attachment by the sheriff. After this sale was made, the main question to be decided was as to who of the creditors and in what order were they entitled to the moneys arising from the sale of the attached property.

All the parties claiming an interest in this fund arising from the sale of the attached goods were before the court, and their rights were not prejudiced by the manner in which the issues between them on these matters were tried. We are also further of the opinion that, under the facts disclosed by the evidence in this case, the district court did not err in permitting the landlord Sims to intervene in the cause, and set up, as against the fund then in the hands of the court, his claim for rent.

The moneys had not yet been distributed, and his relation to the insolvent debtors as landlord, and the amount of his claim, do not appear to have been in dispute. The only question that seems to have been considered was his right to intervene in this proceeding, and assert, as against his insolvent debtors, his right, as landlord, to his unpaid rent. Richoff v. Tidball, 61 Tex., 421. [Opinion delivered December 19, 1884.] This, under all the facts and circumstances of this case, as disclosed by the record, we are of the opinion he had the right to do; and the district court committed no error in so holding.

The judgment is affirmed. Affirmed.