The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-06-23

tue suU-tQueDt PROMISE III SUN WIS
made by 10 pay the deb. is to be consider
ed by the jury as matter sustaining and sup !
porting the statement of plaintiff that tie
credit was given to S. Held error, as !,
does rot reasonably follow that becsuse 5
subsequently, promised to pay the debt if
the goods were furnished to N that there |
fore /. was furnished on SIS credit orig nal y
and because if this were reasonable deduc
ton, the jury must draw il for themselves
Rsver ed ard remanded Quinsn j.
Q linn Il B)wser vs. Elan; from Dallas
county. TIE right to the writ Of certiorsri
is not in any way dependent upon whether
an appeal hsd been taken or not. TIE
plaintiff was entitled to it, though he had
never appealed. and he need not show WHY
he did not appeal. 1t is only necessary
that he shall show sufficient cause, flor
which see revised statute, act 1903 stating
the facts. Reversed and remanded. Qdinar,
j.
Thompson & Co., vs. Burnhsm; from
McLsnnan county. Thompson & Co., sued
NJ, and also b. as gsynishee. Ga trial judg
ment was rendered against T. & Co.,, and in
favor of defendant, NJ from which 7. & Go.
appealed. The case against B. as garnishee
I. s. Co. asked for continuance to abide the
appeal 10 the original Gaze, which was re-
fus d, II ID, error and that the contn-
uance should have been granted, Quinan, j.
| Yarbrough vs. ChsmberlB; from Mism
county. In suit brought in the justice
court under the statute in force
in 1878 to recover tho possession
# certain land described in the complaint,
OF p 10 rs by the defendant we're sustained
ind Q case subsequently, taken to the coun-
ty cou' t on writ of certiorsri. The CONS
plant failed to state that the land or a part
of it WAS situated in the precinct in which
suit WAS brought and the defendant moved
to dismiss the certiorari. Held, that the
court erred in refusing to dismiss the certio.
rari. Reversed and dismissed. Watts, j.
Gross VS. Peterson ct a.; from Da'bs
| county, Under the constitution and laws Of
this state, the county court cannot try tit
to land. The homestead right, is
so far considered tile, that it will
support an action to recover the
land. And the wife alone, under CIR
tain circumstances, may, Independent of the
husband, maintain the action. 1t has been
held in other states that the homestead
right is such freehold, interest or title in
land as is available in defense to
writ of entry. Reversed and dismissed at
appellants cost. Watts, j
T. omp'oh Il Co, va Miller; from McLen-
nan cOu ~ hat the damage resulting from
the levy o the attachment was not, in the
opinion of the witness, excessive when
stated al $1,000 is a character of evidence
that sh nuli not 60 to the jury, rs it IA for the
witness to testify to facts and the iary to es.
tim ,te dam igts. CJarg' that if the defend
ant was damaged in reputation he WAS en-
titled to reoovar therefor, when appareu,
that "ciedV was mean. by "repu alton,
could scarcely mlslead the jury. Reversed
and r'msnded. @ imam, j.
ii. " L. Q. railroad company Vs. Tough
ridge; fr, m Brszos county. Petition for
damages ag,ifs. railroad company for
killing stock, is sufficient without alleging
that the killing was done through defen,
dsnt> negligence In running cars, or that
the company neglected to fence their rail,
road at the place where the animal waa
killed. Statute by its terms makes the liza
billy of the company for injury TO stock
prima. facie absolute. The measure of dam
ages Is the value of the animal killed. Ia
the absence Of evidence of the market value
of the property, evidence of prices which
bad been offered for it is admissible as tend
Ing TO prove market value. Affirmed,
Watts, j.
Davis vs. Hart, Hilborn & Co.,; from Falls
county. Pending au appeal no legal
forfeiture of claimants bond can be declared
AS soon rs the appeal was dismissed the
sheriff certified the failure to return the
p operty and the clerk endorsed the bond
forfeited. That forfeiture was of same effect
asa Judgment. Execution was issu d OF
II. 1880 on Judgment recovered July &c
1876. Judgment WAS not dormant, aud the
court properly dissolved injunction against
execution, and dismissed tho case. Affirmed
Watts. J.
ii " I. O. r X. O vs. Barron OF all from
Limestone county. Under the rules iopled
by tho supreme court for rsgulstion OF prac
t'ce therein, arguments must be
Upon. contested points, whether
of law or of facts, in support
OF propositions or counter pre- positions, as
provided in rule 40; and when, as in this case,
no fundamental error is disclosed by the
record, the court will not consider matter
not presented 10 conformity VITA the rule
Affirmed. Walker, j.
Eikel u Bruestedt vs. Frelich g. Bsdt:
from McIiennsn county. The debt from
the gsrnishee to the defendant in res pee. to
which 1t Is sought to charge the former, mus
DO absolutely payable at present or in future
and mol dependent on any contingency. Sc
Drake on Attach. ISL. Tho provisions o
the statute do not in terms give the attach.
ing creditor any preference lien upon credits
or etleo.s coming to the hands Of the gar
nishee between the service and the answer
Affirmed. Q imam, j.
Lshne vs. Hsld s. Bro, from Menard
county. Suit upon sworn ilemized &C.
count WAS contested by sworn denial and
testimony Of the plaintiff of the sale of the
goods, and wagoner's receipt or bill of lad
ing WAS met by evidence Of defendants clerk
or business manager that the boxes received
did not contain the goods contracted for,
but were filed with trfling matters of no
consequence. The defendants testimony in
connection with the sworn amounts before
the jury were sufficient to support the YER.
dict against defendant (sppellsnt,) provided
the court did not credit the testimony of the
clerk As to the contents of the boxes re-
ceived. Affirmed. Walker, P.J.
Levine vs. Lindenthsl; from McLennsn
county. The dismissal Of the writ Of GER
tiorari amounts to a failure 10 prosecute IL
with effect, which are the terms Of the bond,
aud in consequence suit for damages sus,
tanned will lie. Where an under-tenant
hnlta ac H. -