In response to the motion for additional conclusions, we find:
1. That the answer of the garnishee in effect, if not in so many words, alleged that all the creditors named in the deed, except appellant, accepted the benefits thereof before the garnishment was served. This is the natural interpretation of the following language of the answer, the context considered: "Said personal property in said trust deed described and conveyed to garnishee, was by garnishee taken into his possession at the time of the execution and delivery to him of said deed, said cattle being delivered as they ran on their range; and each and all the beneficiaries in said trust deed mentioned, except the plaintiff herein, accepted the benefits of said trust, and this garnishee proceeded forthwith to excute his said trust in accordance with the terms and provisions thereof, as set out, defined and provided in said deed, and at the time of the service of the said writ of garnishment upon him he had so executed the same."
2. That the deed of trust was made February 6, and the garnishment writ served February 18.
3. That the controverting affidavit, properly named in the record "controverting answer of plaintiff," and upon which defendant in error joined issue, and evidently, we think, what was referred to in the judgment recital that the parties "announced ready for trial upon the issues made by the plaintiff," contained, in the introductory part thereof, the general allegation that the deed of trust was fraudulent and void and did not convey the property to the garnishee so as to place it beyond the reach of plaintiff's debt, followed by a statement in detail of the reasons and grounds, which did not include that of non-acceptance by Rowe.
4. That had Rowe's debt been excluded, the court's findings show that the fund would probably have been sufficient to satisfy the garnishment of plaintiff in error.
5. That in the absence of a statement of facts we cannot determine whether Rowe accepted or not before the garnishment was served, the court's findings of fact, apart from the conclusions of law, leaving it uncertain; but taken altogether, these conclusions tend to show that he probably did not. It does not affirmatively appear that the brother had no authority to accept for him.
The other points raised by the motion, so far as material, are sufficiently covered by the conclusions already filed.
Writ of error refused. *Page 521