The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-05-29
THE COURTS.
synopsis of Opinions of the Comm y
siOners OF Appeals Adopted by TIA
Court of Appeals.

Mckee who in his capacity as constable had
levied upon fifty head of cattle as the prop.
erty of L. B. LeGette, bu! claimed by the
wife as h,r separate property. The return
Of NE constable showed The levy rs charged
and that fifteen head had bsen sold There
wasno evidence MS to what was done with
the remaining ihirty-fve head, the court
having refused TO admit the testimony of
appellants witness as to what became of the
rest or what disposition was made of them.
With the exceptions aforesaid it may be that
the cattle were never moved by appellant
from their accustomed range, or if moved
that they might have been returned to the
possession of appollees. The existence of
such facts would certainly initiate against
the damages to which apptllees might be
entitled. The testimony thus sought could
not be said to be obnoxious to the rule tina,
an officer will not be permitted to contra,
dict his return. Tho evidences ougbl'to be
elicitsd by the questions propounded was
admissible. Reversed and remanded. Watts.
Commissioner.
Rirg We. Smith o. al; appeal from Fan.
min. The appel ant, Ring, was tho sole sur
wing constituent of the family at tho time
of his mothers death; he was then minor
and the other children were married and b.,
children Of their own. The law IN forco n. at
the time Of the .mothss;,, death IN 1879
yes.eu tn NE homestead right in The appel,
ie'.s'ds tho surviving constituent of the FAM
lily. 1t was not necessary for the probate
court to designate and set tho same aside TO
him, for in such cases the law declares thst
the homestead did not constitute sny part of
the estate. He WAS entitled to its use and
occupation together with the fruits am
revenues thereof until no arrived at full ap.
Independent of the claims of creditors or the
rights of the other heirs. 1t was never in
tended that the constituent of the family
should DO nothing moro than an involuntary
lessee oil tho homestead on credit, the rents,
revenues and profits of which he would be
compelled to account for at his majority.
Such construction of the law cannot be
maintained. 2. Generally our tenant in
common cannot maintain an action against
his cotenants for any part of the rents and
profits of The common property in the ab.
sence of q special agreement between them
to account for rents McGrady VS.. McRae.
Galveston term, 1884, $50 alsJ IL Gal 4l9.
Reversed and remanded. Watts, Commits
sioner.
Lackie vs. Braml,tt; error from Frio.
l. II has been Often held that the county
court has no power to issue the writ of in.
junction except to enforce lis Jurisdiction or
ancillary to some proceeding within its
Jurisdiction. Tex. Lsw journal 1870, SIS
Frederic vs. Shea, Austin term, 1880.
2. The county court has no control over
the proceedings in a justices court except
such Is acquired by the means prescribed by
law, that is to say, by appeal
or by the writ of certiorari, 3.
lnlunctionl not the proper remedy
against an execution Issued upon a void
Judgment rendered IN q Justices court, at
least IT, this case. Motion could bs made
before the justice to go! aside the execution
issued upon q void judgment, and from his
Judgment on that molten an az peal would
Ito. If injunction was tho proper remedy
there WAS nothing in the petition to show
any equity 10 require its Issuance. There is
no allegation or showing that the legal
remedy in tho Justices court was not full,
adequate and complete. Sec l6, Art 8, Goa
1876; Harrison Va Crumb, Galveston term.
1881. Nor is it shown why no did not
appeal or prosecute his writ OF certiorari
in due time, Equity aids only the dbl.
igent 81 Cal no; Highou injunction
ISL, Reversed aud dismissed. Qlinao,
Commissioner.
Young vs. Buckley; appeal from Bexsr.
The state provides that in lieu of an appeal
bond tho appellant, may make and flo an
affidavit that "he Is unable to give bond
and security for costs as may be required by
law" An affidavit made by an agent or at
torfoy IN fact shat he knows tho plaintiff BY
reason OF his poverty Is unable to give the
appeal bond in this case" is not ia compli-
auce with the statute As Texas, 653; 40 Tex.
a., 697. The motion 10 dismss tho appeal
ought to have been sustained by the court
below. Judgment reversed and appeal to
county court dismissed. Waite, com'r.
johnson ct al VS. Doss; appeal from Young.
This.was suit in justices court for tho recoy.
cry OF the rent of certain promises, appealed
afterwards to county court, where TO prove
their right to recover the rent, johnson and
Bfien offered in evidence q certificate
copy OF judgment against Gooden. tho
landlord OF Doss, and execution issued there-
on, levy and sale, return Of sale and sher-
itfs deed to them as purchasers Of tho land
for which the rent Is claimed. Upon obiec.
tion this evidence was excluded upon the
ground "lhst 1t raised tho question Of title to
the premises" Held, that the evidence was
material 70 prove the right 10 recover The
rent BY showing the ownership of the prom.
erty. The sale ofthe land under tho execu,
ton carried with II oil the rent becomipr
due subsequent to the transfer. & PAIGE
Oh. 683; IS Wis. Al; 8 Paige. 802; 3 Waits
SoA; AN Y.270; 8 Kent 469; Taxss Ia y
journal Vol. 3, 6A2; 10 Texas SAC; 81 TEXAS
287. (2) Article 1924 r. 8. 10 modified bv
cot Of 1879. page l26, 80 that the affidavit OF
the witneas' absence In order TO Law the
predicate for the introduction Of his deposi.
ton. 10 no longer necessary. Reversed and
rsmanded. Quinau, Commissioner
Henry ct al W Mcdaniel; appeal from
+ Dallas, !. An agreement between The
payce and principal Of note whereby for Z
valuable confederation the time Of payment
y extended beyond its maturity will release
We security. 8 Tex &C; "a Tex 800. The
burden 10 upon the security 10 prove tbe
pgteemens, but no more certainty In tbs
amount or nature Of tho proof ID REQUIRED
Than In other civil cases. II was error a
charge that Tho lhot muss be prcven IN NJ th ~
"sn''ss Satisfaction" Of he Jury. Al Tex iSS