The motion to dismiss must be denied. The judgment makes a final disposition in some form of all the matters presented by the pleadings to the court for determination. In this respect it differs in a marked degree from the cases of Linn v. Arámbould, 55 Tex., 611, and Green v. Banks, 24 Tex., 522. It may be that in some matters the judgment was irregular, or possibly even erroneous. With this we have nothing to do. It is in its character and effect a final judgment, and as such final judgment is subject to revision here.
The motion of the defendants in error to strike from the record the bills of exception must prevail. These bills were not presented to the district judge for signature within ten days after the motion for new trial was refused. See Sabine & E. Texas R. R. Co. v. Joachimi, decided at this term.
These same bills of exception are also embodied in the statement of facts, as seems to be permitted in some cases by rule 56 of the district court. Though the ¡Revised Statutes, which require the presentation of bills of exception to the judge within tén days after the conclusion of the trial, have been enacted since the publication of this rule, yet if the statement of facts containing the bills of exception to the admission of improper evidence were signed and approved during the term and within ten days after the end of trial, we would feel bound to regard them. But this could not be done in view of the present statute, where, as in this case, more than ten days after the conclusion of the trial had elapsed before the statement of facts was presented to the judge.
*529The court did not err in retaining its control over the case after sustaining the motion to dissolve the injunction, by reason of the sworn answer of the defendants below having denied and taken away the equity of the bill.
The original petition, we are inclined to think, by reason of its specific averments of the fraud practiced by the- plaintiffs in error in obtaining the judgment by confession, and by its precise allegations setting forth fully the insolvency of the defendants in the judgment attacked for fraud, and showing on its face that the only remedy of the defendants in error was in equity, was sufficient to authorize in the first instance the issuance of the writ of injunction. Why wait until a suit at law had been brought, a judgment obtained and an execution issued and returned nulla bona, when the facts disclosed show there was nothing to be reached by the final process of the court; especially in this state, where matters of law and equity are cognizable in the same court, without regard to the distinctions in forms of action that exist at common law? All the insolvent debtor’s property was held for the plaintiff in error, under the operation of the execution issued on the judgment obtained fraudulently by confession, as the defendants in error allege.
Without, however, expressing more fully an opinion on the point, we hold that the court decided correctly in refusing to dismiss the case, or sustaining the motion to dissolve the injunction. The petition prayed that the judgment in favor of plaintiffs in error against Donnenbaum & Friedlander be vacated and set aside, and that the levy made by virtue of the execution issued on the judgment be declared void. The court properly retained the case to try these issues, and also to finally dispose of the proceeds of the property that had been sold under its own orders. Over this branch of the case, by its order made when the injunction was dissolved, it is evident that the court contemplated taking further action on its final disposition of the other issues in the case. If any doubts existed as to the power of the court to proceed in the case, based on the ground that the averments in the original petition were not sufficient, these were all dispelled during the further progress of the cause.
Before the court had disposed of the motion to dissolve, the defendants in error, by their subsequent pleadings, set up fully the fact that they had in their suits which were referred to in their original petition for injunction as then pending in the district court of G-uadalupe county against Donnenbaum & Friedlander, then sued out a writ of attachment, and had levied it on the same goods that had been taken into possession by the sheriff under the execution in *530favor of the plaintiffs in error. By virtue of this they claimed, before the injunction was dissolved, to have a lien on the funds then in the hands of the court. Under these additional facts disclosed by the pleadings, there could be no doubt of the power and duty of the district court to proceed with the trial of the case on its merits.
An attaching creditor whose writ of attachment has been levied on goods in the possession of the sheriff by virtue of an execution issued on a judgment by confession alleged to be fraudulently obtained, has such a lien on the goods as to authorize, under proper averments, the issuance of' an injunction. ÍTor do we think the court erred, under the circumstances of the case, in assuming in its charge the existence and levy of the writ of attachment.
As the plaintiffs in error failed to present here for revision the ruling of the court on the admission of the evidence, to show that the writ of attachment had been levied on the goods in question, they must be considered to have waived it. This evidence then being before the jury without objection, and the fact of the existence of the writ of attachment being practically the question, it was not error for the court, under the circumstances, to announce to the jury the fact that the writ of attachment existed. It had in the previous sentence assumed the existence of the writ of execution that had been levied by the plaintiffs in error on the same goods. This action of the court, in any event, worked no prejudice to any right of the plaintiffs.
This brings us to the consideration of the action of the court in giving the charges asked by the defendants in error, and in refusing those asked by plaintiffs in error, and also to a consideration of that portion of the main charge of the court that is brought under revision by the assignment of errors.
The court, of its own motion, charged the jury to this effect:
“ That a debtor has the right to confess judgment in favor of any one or more of his creditors, giving such creditor or creditors a preference over other creditors, if done solely for the purpose of preferring a creditor or • creditors, without any intent to hinder, delay or defraud other creditors not included in sucK judgment. The mere fact that the confessed judgment does in fact hinder or delay or defeat the other creditors would not render such confessed judgment void as to the left-out creditors; but to render such a confessed judgment void, it must be shown that it was the intent of the parties to the judgment to hinder or delay or defraud the other creditors.” . . .
“ In determining whether or not the intent of the parties to said *531judgment was solely for the purpose of securing the preferred creditors na.mp.rl in the judgment, you are to take into consideration all of the facts and circumstances in evidence.”
[Opinion delivered February 9, 1883.]At the request of defendants in error, it instructed the jury as follows :
• “ In this cause the jury is instructed that if they believe, from the evidence, that Donnenbaum &. Friedlander were indebted to the plaintiffs Schram & Co. on the 26th day of November, 1881, then it is not enough that Blum and his. coplaintiffs in the judgment of that date was taken and confessed for valid debts due to them from Donnenbaum & Friedlander, but there must be an absence of knowledge on the part of Blum that Donnenbaum & Friedlander" had a further purpose in confessing such judgment to hinder or delay or defraud Schram & Co.”
We regard these charges, under the facts of the case, as fairly enough directing the minds of the jury to the true issues in the case. They are not, Avhen considered in connection with other portions of the main charge, unfavorable to the plaintiffs in error, and were sufficient to enable the jury to understand the law applicable to thq facts of the case.
L. & H. Blum asked a charge wherein it was claimed, as matter of law, that unless the jury should find that Schram & Co. had the lien of attachment creditors, they should find for defendants, which the court refused."
The refusal of the instruction was not error. The evidence that a writ of • attachment had been levied on the property had been suffered to go to the jury without a bill of exceptions being saved.
The further question raised by the instruction, as to whether the writ of attachment created a lien on the goods in favor of the defendants in error, whs not a matter of fact to be submitted to the jury. That was for the court to decide, as matter of law.
The final judgment disposed, in some manner, of all the matters in controversy, so as to have been satisfactory to the defendants in error. None of the grounds of error assigned by the plaintiffs appear to be Avell taken, and the judgment is accordingly affirmed.
Affirmed.
Chief Justice Willie did not sit in this case.