The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-11-17
synopsis of the Opinions of the Commits
sioners of Appeals.

Weems vs.. Miles & Rainer; from Dallas
county, Though both parties be residents
of another State, an affidavit for garnish-
ment that sets up the fact that the defend
ant has property in any county in this
State, and the issuance and service of the
writ, will give to the courts of that county
jurisdiction to hear and determine the
cause. Suit can be maintained against an
executor under will which gives
control of the estate independent
of the probate court, and execution
will run against the estate in his possession.
The statute requiring that the executor
shall not be required to plead to any suit
until the expiration of one year from the
probate of the will is 4 personal privilege
which may be waived, and if he appears
and answers before the expiration of that
tim, he thereby valves the privilege. AT
trmed. Watts, commissioner.
Hall VS.. Person; from Lamar county.
The general rule in this State in sui for
the breach ofwarranty IN the sale of lands
is that Judgment of court of competent
jurisdiction, not appealed from, establish
ing superior outstanding title, is of itself
sufficient evidence of eviction. And gener-
ally the measure of damages is the pur-
chase money and interest, but when the
suit is against remote warrantOr, the
purchase money that he paid
his immediate vendor, with interest, but
never TO exceed the amount of purchase
money received by his remote Warrantor.
Recltals in the deed from the vendor TO the
vendee rs TO the amount of purchase-money
is prima iacic evidence that the amount
stated was the true consideration, but such
recltals are no evidence of what the vendor
paid for the land. Watts, commissioner.
Schneider Il Davis VS.. Billiard ct all from
Ellis county. This was statutory pro-
ceeding in garnishment wherein the issue
under the answer OF the garnishees was
whether the goods in their possession was
the property of NJ !. and subject to the debts
OF his creditors. In contemplation of law,
in proceeding of this character, the prop
erty was, as to his creditors, the property
OF NJ, if he had transferred and conveyed It
TO garnlshees under circumstances which
rendered such sale and transfer fraudulent
as to his creditors. The cause was submit
ted to the judge, and his determination of
the facts is as conclusive as the verdict of
jury. Affirmed Walker, commissioner.
Lizzie Campbell VS.. Houston " Texas
Central railroad from Ellis county. The
charge OF the court must in all cases cor
respond with the allegata and probata
There was not in this case the least evil
dence of any act of commission or omission
on the part of the agents of the defendant
whereupon to charge that the injury re-
suited either from its act OF unlawful COM
mission, wilful omission or from gross neg
ligence or malice. The existence of some
one, or kindred of these elements, must be
shown in order to warrant recovery. The
petition made no allegation charging that
the homicide was committed by the wilful
act or omission of the officers or agents of
defendant The petition was not so framed
that exemplary damages could be recovered
and charge thereon was probably refused
Waller, commissioner.
Jones VS.. Smith; from Robertson county.
ina suit to subject the property of n sole
leSatee to an amount paid by plaintiff on a
A valid incumbrance on that property, the
executor of an independent win is not a
necessary party. The validity of the Sher-
I Ill $ deed to the intervenor, Smith, was di-
rectly involved in the litigation between
W. and, Jones-Smith having purchased at
Sherlh S sale under u valid Judgment and
conveyed with warranty to W. The Sheritrs
sale proving invalid for misdscription,
smiths interest in the subiect-matter of
the litigation between w. and Jones is APP
parent, and entitled him to intervene. If
Tor any reason, Sheriirs sale upon valid
Judgment is Intellectual, the purchaser, be-
comes Subrogated to the lien of the original
Judgment which his money went to dis
charge. See 40 Tex. 255; 81 Tex. ga. AZ
nrmed. Watts, commissioner.
Howard vs.. Cross and wife; from Burnett
county, Whenever homestead right
to lard las attached to the husband
me wife acquires homestead right in it
aIso, and to thir acquisition, her actual
\ presence is not necessary and her right
having once attached, she can only be di-
| vested in manner prescribed by the Consti-
tutlon-by her deed with her privy ac-
acknowledgement, or by abandonment under
circumstances which would Justify the con-
clusion that she had abandoned it. False
representations of the husband cannot di-
vest her other right Charge of the court
conforming to these principles, and evi.
dence ofdcsignation and acquisition being
complete, the judgment is affirmed. Out
nan. commissioners Wniia rnnnnni s.innnr