The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-03-03
opinions of the Commissioners of

OVsAlOhb Va e-AN
Appeals.
Prepared for the Herald by Edward j. HAM
ner, OF Galveston.l
Z d. G. Harrison ct al. VS.. a.. Crumb; appeal
from Tarrant county. A party seeking to
enjoin Judgment must show that the plain
tiff had no cause OF action, or that he had a
meritorious defer TO tho action. That tue
Judgment is clearly contrary TO equity and
good consci ace, but equity will not en1oin q
Judgment merely on the ground OF error
A party failing in his application at law for
q new trial will not be relieved in equity, at
least upon the same merits already discuss
ed, and fully within the discretion OF the
court at law. Before equity will grant re-
lief, three things must concur: Ignorance
of the defeose when the Judgment WAS rem
dered, diligence on the part of the com
plant and that adequate relief cannot be had
at law. This injunction having been granted
after the expiration of the twelve months
both Of the ground Of the motion to dissolve
and dismiss were v ell taken aad ii was. error
to override the motion for which the judg-
ment ought to be reversed and the cause for
ipiurction dismissed. Reversed and dis
missed. Walker, p. @.
e. X. Standlee VS.. j. A. benson; appeal
from Williamson county. The bond given
in the case is rs follows: "Now if the said
j. A. benson shall prosecute said writ of
certiorsri with effect and pay all costs and
damages that may be adjudged against him
by said county court, then in that event this
instrument to be null and void, otherwise
to remain in full force and effect" Held,
The bond given bound the party only to pay
such costs and damages as the county court
might adiudge against him. The bond re-
CURED by law binds the party TO pay if he
TAIL all costs and damages occasioned by the
proceedings under the writ, whether ad-
Judged by the county court or not. Conse-
quently the bond is insufficient. Reversed
and dismissed. Quinau, Com.
Louis Sulybacher W.. William j. Wilkin-
son; appeal from Menard county. In
constituting conditional contract no partic-
ular words unnecessary to constitute con-
dition precedent or a condition upon the
point, it must be determined by the cir
cumstances of the particular case. If entire
performances Of q contract according to the
express agreement be rendered impossible,
j
in fault will be liable on quentum Ineruit,
or other actor on the case, the compensation
being graduated IS far as possible by the
terms Of the express contract, where it is
not a case Of confict, but fentire efficiency
of evidence, a new trial ought to be granted.
Walker, p. G.
p. Ochoa and wife VS.. Josefa M. Cara;
appeal from Bexar county. Without the
complaint in case of forcible entry and
dotainer clearly and specifically recitea such
an accurate description OF the land in con
troversy IS will leave it in no doubt what
ever, as well as that the complainant WAS IN
possession at the time Of the alleged fcrcible
entry (22 Tex. ~. A motion 90 strike out
is good and should be sustained. Reversed
and dismissed. Walker, P. O.
j. f. Mcdonald vs.. j. I. Holt; appeal
from Fannin county. One of several prom
isors not signing as q surety cannot plead
that be is surety merely for the purpose of
requiring the alleged principle TO be joined
or simultaneously eued.
William K. Hughes VS.. M. j. Boehner;
appeal from Dallas county. Appellant Of
fered in the court below to read in evidence
certain answers of Ii. IL. Boehner
10 interrogatories propounded TO him by
appellant going TO prove up the contract
IN controversy. Appellee objected ION the
ground that whatever passed between plain
Iilf and defendant in resardto the charge Of
contract was by letters, and luas .neso ictlels
we're the only competent evidence on this
point Objection sustained in the court
below Held, IL does not appear to us that
he answers were liable TO the objection
urged. Reversed and remanded. Watts,
Com.
Flint, Chamberlain & Graham ct ais. VS..
AfcCarty d Brown; error from Hood coun-
~. The affidavit asserting claim TO the
cotton in controversy was signed, not by any
Ipecial member, but rs firm, "McCarty y
Brown" Held, The motion 10 strike out
he affidavit for the reason that it does not
appear 10 lave been sworn to by any par
cular person or individual, but by the firm,
'McBarty & Brown" should have been sus-
aimed, the failure 10 do which is sufficient |
lrfor TO revise the judgment, and there being |
10 sufficient affidavit 20 support the judg- |
nent the case is dismissed. Reversed and |
IiEmissed. Watts, Com.