It was admitted, pending the trial, that advertisement for the sale of the property was made the first Saturday in June, 1891, and the constable had the ji. fas. in his possession on that day; that the claims of Powell Brothers were on the first Saturday in May, 1891, at the justice court of the 1188th district, withdrawn by Gurley, attorney representing the claimants ; that the magistrate entered on his docket “claim withdrawn,” and a judgment for costs was entei’ed up by plaintiffs’ attorney; that claimants’ attorney took no order transferring the claim to any other court, insisting that the above named court had no jurisdiction of the claims, for the reason that the fi. fas. emanated from justice courts of different districts; that soon after the levies were made, in October, 1890, O’Neal, attorney for claimants, promised plaintiffs’ attorney repeatedly that he would pay off the fi.fas., as he had knowingly bought the property subject to the liens of plaintiffs’ judgment—thereby disposing of the claims and saving plaintiffs the necessity of attending court to try them, and in pursuance of the promise did pay constable’s cost of levy, etc.; that as O’Neal failed to pay off the fi.fas. as promised, plaintiffs’ attorney put him on notice that he would attend the court on the first Saturday in May, 1891, and press the cases for trial, when Gurley, representing claimants, appeared at the court and withdrew the claims by entering on the claim affidavit and bond “claim withdrawn,” whereupon plaintiffs’ attorney entered up judgment for costs. O’Neal stated in the presence of the court on the trial of the rule, that ho did state to the constable, on the fh’st Saturday in June, 1891, when the property was readvertised to be sold, that as plaintiffs had seen proper to rule him for the money in the superior court, they might get it that way, and not sell the property.By consent the case was heard by the judge without the intervention of a jury. He found against the constable and ordered that he pay over to plaintiffs in fi. fa. the amount duo by a day stated, or in default show cause why he should not be attached for contempt. To this decision also the constable excepted. ' ■O. G. Gurley, by brief, for plaintiff in error.No appearance contra.
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