The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-09
SYNOPSIS
~ Decisions of the supreme Court'
Galveston Term, 1850,
Reported for the News Wy o, u, Eaton, Of w
Galveston linr,

HNluiltn lul WV NhWn Wy W W lsNNHlI W. NH'
Galveston linr'
Julia A. Warren Va, j. q, WooieH 1t al,
Appeal from Houston, On motion 10 llle
Transcript, Opinion by Moore, q, j, The
affidavit In support Of This motion sallslaotlr'
ily accounts Cor tho delay in ding the trans
crlpt, and tho motion would BIO granted " u
did not appear on the face Of the transcript
that tho appeal has not been perfected In 40
Gordance with tho forms Of tho statute under
when II IL attempted 10 BIO prosecuted
Where party wishes 10 appeal case with
out giving bond for costs, he must make
proof Of his inability 10 pAy tho cost or any
part thereof. or give security therefore,
before the county Judge Of tho county
where no resides, or before tho court trying
tho case, But In this easo the affidavit rolled
upon M proof Of the parIys Inability 10
pay tho costs or give q bond
therefore, WINS not made before the county
Judge, or 40 mr rs appears from tho trans
script, GyOr presented 10 or even seen by him,
The Iural TO the affidavit Is attestod by the
clerk of tho District court which tried the
case. But tho transcript shows that this was
done seventeen days ailor the adjournment
Of tho court, II cannot be sNd, therefore,
that tho proof WIS made before tho court
trI Ink tho case, 10 warrant our saying that
tho proof OF liability 10 give bond Ns required
by law has been mado, would require that
We should dispense with the proof required
by the statute, because different character Of
proof may appear 10 ~ equally satisfactory
and convincing Of the truth Of the hct 10 DO
established, This wo have neither authority
nor disposition TO do, II would DO n pnlpN'
bio and direct infringement Of legislative nu-
lhOrty and M assumption Of the right TO
substitute our Judgment for that of tho logis'
lRluro In the enactment Of II statute. over
ruled.
b. A. Shepherd vs., j, w, Barnett, OF nj.
Appeal from Harris. Opinion by Gould, j.
Tho petition alleges plaintiffs ownership Of
II certain ton.acro lot in the City Of Houston,
bounded on tho south by ~ public stroOt
known as Williams street, constituting m
easement TO his lot and wilha Wow TO which,
~ mn outlet thcrolfom, he Ind purchased
said lot; that defendants, by erecting fences
across tho street, Ind obslructod II and pre-
ycntod ia FREQ passage, and had thereby do
preciatod the value Of the plaintiffs lot IN
tho sum OF ono thousand dollars. Plaintiff
prays for Judgment, that the distractions 10
The street DO removed and for one thousand
dollars damages and costs, The petition was
excepted TO generally, and there was also u
special exception TO the effect that tho petit
ton showed cause Of action in the public
(if any porson), and showed no cause of ac-
ton in plaintiff, which exception was sus-
tanned and the cause dismissed. The petition
is certainly quito mcagcr; but whilst ii
shows public nuisance, II shows also that
plaintiff has suffered special damage there
from, different from that which is common
to tho public The depreciation in value of
his lot consequent on the obstruction of tho
street bounding tho lot and leading thereto,
constitutes such particular injury TO plain
tiff AS entities him to redress, and this injury
was sufficiently alleged, at loNst, unless special
exception was made for want of greater GER
ainty in tho ayerment. Reversed and re-
handed.
4. II. Snow OF al vs.. NJ, Mathcr. Appeal
from San Jacnto, Opinion by Bonner j.
The note in question having been given in
consideration OF community property, al
Though il might have been avoided by Mrs.
0Goddin, had suit been brought against her in
her lifetime, or by her administrator after
her death by refusing to allow it., yet it was
not absolutely void. The allowance by the
administrator and the approval by the chief
Justice of the county court, merged tho note
into quasi judgment, and the heirs of Mrs
Goddin should not years afterward be per
mitted to vacato this judgment by proceed
ing in the nature of bill in equity, without
sufficient averments and proof TO authorize
this. 1t appears that Mrs. Goddin signed
the note Mt the request and solicitation Of her
husband, and by whom, as her administrator,
it was subsequently allowed as claim
against her estate II is not shown that Ma
Their, Hughes and Saunders procured her to
sign it, or even knew that she WAS II married
woman, or that the allowance
and approval was fraudulonty pro-
cured by them. 1t would seem that ro-
lying upon the allowance and approval they
have made no other effort to collect the note,
and that MS against the other maker it would
now be barred by limitation. Under these
circumstances, after so long lapse of time, and
after nearly all the principal actors are dead,
and with them has passed away the evidence
upon which they might have relied to sustain
their original cause of action, it would be in
equitable to set aside this judgment upon the
bare testimony Of him who both originated
and perpetuated the fraud, if there was any
in the transaction; and particularly when the
testimony fails to connect Mather, Hughes
and Saunders with il, and when it may reas-
onably be presumed that if the judgment be
vacated, the witness may again receive some
of the benefits arising therefrom. If the
claim, which in fact should have been paid
by the administrator himself, WAS improperly
allowed by him in fraud Of the heirs of the
estate, as is alleged and as the testimony
would tend to prove, then it would seem that
the plaintiffs have plain and adequate REM
edy against him on his bond. Affirmed.
Bertha Wolfe, survivor, vs.. Anna Il Buck
lev. Appeal from Harris. Opinion by Bon.
ner, j. The Judgment below exempts the
property in controversy from forced sale OF
the ground that the appellee, Mrs. Buckley
was the head of n family and that the same
constituted her homestead and before the
judgement should be reversed, it should ap
near that in this there was no error. The
Judgment against Mrs. Buckley to the lien o.
which it is claimed the property should bt
subject, was rendered in favor of appellant
on December 10, '78. 1t was not controyert
ed but that Mrs. Buckley had lived upon the
place since April, '76. The only materia
question in the case was whether Mrs. Buckley
constituted such head of a family ms unde
our constitution and laws was entitled to the
homestead exemption. As said in Rocco VS.
Green, so Tex, 400, owing to the want o
appropriate legislation on this subject, w
have had to decide the particular case unde
consideration nv aid of such rules of con