The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-06-17
THE COUNTS.
Censent Cases d. cidcd by tho Com.
mtssiOuers Of Appeals.

Bexsr county. The act Of April Gath, 1874
entitled IAN Get to provide for the amend
ment of town and city charters" is hell
constitutional, and any amendment Of tn
charter of San Antonio adopted in accord
Ance Herewith legal and binding. Tn
recorders court is recognized by an act o
incorporation ard by general statute; 1t !
authorized to adjudicate all matters commit
ted TO it by charter and oriinances. or gen
eral laws Of the state; and these ad judicstionI
within the recorders Jurisdiction are final ant
conclusive until vacated or set aside in som,
of the modes prescribed by law, and are no
subject to collateral attack. No collatera
examination can be had into reasons or mo
tives Of the recorder in discharge of his judi
cial duties 60 long as he does not exceed thu
discretion committed to him by law. Tit
city i,.srshal has no interest in fines, and i
he 10 entitled TO iees they must be collected
as such from parties convicted. Ii thu
recorder should refuse to tax such fee in
costs, motion TO re-tsx, .anrs.,, or certiorari
!, H.. inc remeoSr i th.n It could be shown
. ..s ne recorder acted corruptly with
2 .espoct to this matter of fees and with intent
t. injnre the marshal. it might be that al
individual action against tue recorder would
lie. But trust, as against the city, in be-
half of the marshal, could not arise out OF the
wrongful or irregular adjudiestions OF the
judicial officers of the corporation. Affirmed
Watts, j.
Drane ct al w. Gunnemere Of al; from Ma.
varro county. 1t is an established principle
that all the evidence of right of action is
merged in the judgment rendered in the suit
upon such evidence of right, and such
judgment is final and conclusive on all mat
ters thereby adjudicsted. This rule has ap-
plication as we'll 10 judgments rendered In
sister states as when ndered in the state
where the suit is br, u hit which presents the
question. Judgment in any Of the state or
federal courts, being regarded debt of re-
cord, and entitled to full faith and credit, is
merger in ever part of the United States In
the same manner as in the state which it was
rendered. If actions are simultaneously
pending upon the same cause of action in
different states, judgment in either will
bar the further prosecution of the other.
But no judgment is to be given anv greater
effect elsewhere than 1t had In the iuris fiction
in which II originated. Proceedings in the
probate court of Louisiana to enforce the
various successive aud progressive steps inci>
dent to the settlement of an estate by an nd.
ministratrx, and distribution. among the
heirs of the remaining property, does not
amount to merger Of a cause of action for
damages. Reversed and remsn1ed. Walker,
P.J.
The Navarro Publishing company and the
81 Louis Type Fou dry company vs.. j. w.
Nah hnr az
.pellsnts sued to snnul contract between the
Navarro Publishing company and Fshburn,
whereby the lat or got control of the paper
publ he'd by the Navarro Publishing com,
psny, with material, and for recovery of job
press, type, etc delivered to Flshburn by
the publishing company, that the same might
be 80 d for the benefit of the type foundry,
from whom it was purchased BY the pub
fishing company, and not paid for. Petition
sets out the contract between the publishing
company and Fisbburne. Prayer wss for
judgment for 50 900. if the first relief asked
could not be granted. +. and NJ, defend
ants, we're purchasers from r. with notice.
Gsnerel demurrer of defendants was aus
tanned by the court Held, that the petition
showed no privity Of the St. Louis type
founiry with the contract sought to be re-
soinded; and that miejoinder Of the parties
plaintiff was apparent on the face of the
petition and the defeat was reached by
exception. The fraud which is the ground
Tor relief against a contract, is fraud ut the
time of the execution of the instrument.
The petition in this case charges neither
fraud or Misrepresentation against the defen-
dant In making the contract, and whatever
cause of complaint alleged to exist concerns
ing 1t appears to have arisen long subse.
quent, AND after the contract had been mu-
tually acted upon with apparent satisfaction
90 far as shown by petition. A contract
cannot ordinarily be rescinded unless both
parties can DO reinstated In their original cit.
uation with respect to the contract, and if
one party has received benefit he cannot res
scind wholly, but has his action for damage,
or may set up the other default as a defence
pro tanto, If 1t be impossible to reinstate
the other In precisely the same condition, IL
Will be sufficient If be do or appear to do
Oil In his power 10 this respect in order to
ontille him to recover damages. The petit
tion in tnis case is wanting In the statement
OF any substantial ground for relief and the
judgment Is affirmed. Walker, p. j.
syllabus of the Decisions of tho Com.
mfssiOners Of appeals Adoptcd by
tue court Of Appeals
Dicks vs.. Austin College; from Grayson
county. Being sued for his subscription TO a
general fund raised by the citizens of s, for
the purpose of securing the location thore of
Austin College, the appellant, defendant
below, challenged the qualification Of the
judge to preside in the case, on the ground
that he too. was subscriber to the fund,
and had not yet entirely paid his subscrip-
tion, and had, therefore, personal interest
In TIE litigation. Held, That the objection
was prop rly overruled. The filing of an
AFFIDAVIT of the mutilstion of the instrument
was not necessary to let In proof that the
defendants full name. and the amount of his
subscription, was originally on the contr Ict
which had since become 60 worn "a that
some Of the letters aud figures had become
obiterated. With the explanatory evidence
OF the witness the instrument (contrac,) was
properly admitted. Affirmed. Watts. j.
Erwin We. city of Austin; from Travis
county. Motions, demurrers and dilatorv
pleas must DO disposed of before the trial
OF the merit, is entered upon, and unlass
presented before that time they are con,id
cred waived. judgment for S2dS or was
rendered agsins! the city Ia the court of A
justice OF the peace, and tho case was re
moved to tho county court by certiorari
The county court on motion ouashed tho
amdsvit On which the garnishment wss
based, on the ground that Il was sworn TO hv
the attorney and not the plaintiff--thi,
motion being m ada q ftar tha -. s,;.. T., ''