The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-05-27
THE COURTS.

synopsis OF Opinions OF the Commits
sioners or Appeals Adopted by th'
Supreme Court.
Coleman vs Smith; appeal from Travis
This was suit to est blish. boundary lin
between plaintiff and defendant. Defsndsa
cot up plea. that the line had by sg'eemon
been settled previously between him All
plaintiff vendor. Verdict and judgment f.,
defendant from which plaintiff appeals.
/. II there was mistake la the fell
notes offered in evidence the field note
themselves are the bes. evidence of the fac
and il was not error to refuse witness I,
state to the jury that there was mistake il
them The exhibition Of the plat and 6el,
notes would evidence the mistake, and i
was the business Of the jury TO determine tn,
fact. Testimony OF u witness TO whom
line or corner was pointed out by com
missioner who made portion of the land
the commissioner being dead, was compe
tent testimony: % Tex 665. 3. A copy d
q deposition contained in the transcript of 0
cause In the supreme court was wholly iuad'
missible to show the utreliability of the
memory of the witness. 1t could have been
shown by tho officer who took the deposit
ton, or by the production of the depositiols,
and proofof bis hand writing thereto. A.
As to the binding eff CT Of settlement of &
line between the par lies, see 46 Tex Cos; IL
Tex "a; 10 $685. 20 Tex $50; 81 Tex 256
Affirmed; Quinsn, Commissioner.
Lyons vs. Reed ct III; appeal from karnes
This suit was brought by appellees against
appellant and Benke, the sheriff of Goliad
county, and others, to enjoln tho sale Of
twenty. seven mead of horses, levied on by
said sheriff by virtue of an execution upon a
judgment against enc A. II. Reed, who. al
the date Of tho levy, was dead, md for dam
ages, the property being alleged to be the
property of the RppeIlees. Verdict for mp
pellees and $3.50 damages. The sheriff plead
that the horses were in the brand owned by
Reed in his lifetime, and that he acted only
in the regular discharge of his duty, etc.
This plea was properly stricken out. He
could not justify the seizure of the property
OF plaintiff under AN execution against third
party. Plaintiff was asked: "How much
were you damaged by the seizure of your
property 7" to which defendants objected on
the ground that i vas too general The mere
asking tho question cannot be objected to as
error unless II was shown that II jury resulted
from 1t. Witness stated gross amount and
facts from which his injury resulted There
arc exceptions to the general rulo that the
opinions of witnesses are not admissible
Wharton, Ev. 600; 10, II. Sedgwick, Dam
ages 635, 637. If it were error to receive his
estimate IN gross Of the amount, it is not
perceived that injury resulted from it. The
verdict of the jury seems not to have been in-
huenced by 1t, as they found one half this
estimate. Affirmed. Qainan, Commits.
:iOner.
Raysor VS. Reid OF sl;appeal from Wash,
ington. Mor,gaged propertyis liable to be
sold under an execution against the mort
gsgor, subject TO the lein OF the mortgage,
although IT contains power authorizing the
sale OF the property by u trustee, upon de-
fault OF payment by the mortgagor. The
MORTGAGE WAS not entitled to hold the prop,
erty, exempt from liability to be taken aud
sold, subject to his lein, under execution
against the mortesgor. 20 Tex 1888. See
also IL Texas Al Is Tex S77; 90 Tex 500
II tho claimant was endangered, in respect
to his lein, by the levy, his remedy was to
invoke the equitable powers of the court by
an original proceeding. (27 Tex 472
Affirmed. Walker, q.
synopsis OrSupremo Court opinions,
Texas IL N. o. railroad company We
White; error from Tom Green. Original
petition claimed one>thrd of the land
located by virtue of ten GAO acres certificates.
rs compensation for locating, or SPA for
each certificate so located. After service of
petition and without any appearance by
defendants, an amended petition, wrongly
sty led Supplemental" was filed, alleging
the location of one other certificate and
claiming like compensation. Held, this
was setting up an additional or new cause
OF action, and TO mott having been given il
was error TO render judgment by default
embracing this new demand. 90 Texas. Is; |
~ Texas, 1923; 80 Texas, %. Defendant in
error suggests that a remitteur Of one eleventh
OF the judgment be entered, seeking thereby
to cure tho error, but unless 1t clearly an
pears that the proposed remit,eur covers all
OF the judgment that was founded ON tho new
cause Of action, the error Is not cured. Tho
court held him entitled to one,,hird of ,be
land, and on failure Of defendants to deed ii
70 nun, gave him moneyed judgment for its
value. Manifes,ly it is impossible for this
court to say what valuation was placed on
tue additional section lying in different
county as compared with the others, or to
what amount the judgment may have been
affected by this additional section, hence. in
our opinion, the proposed remitteur does not
euro the error. Reversed and remsnded
Gould, j.
Brown VS. Williams; appeal from San
Saba Ga behalf Of appellant 1t Il claimed
that ''lhe peadiugs of plaintiff as thoy we're
oil ille at the lime Of the submission pre
sented tho case TO be decided by tho arbiira.
tors and none other" The rule Is said 10
be that tho courts will always seek to nut as
liberal, large and comprehensive construc,
lion upon tho submission as the apparent
interest OF the parties TO Il will admit.
Morse on arbitration, p 80; "a VT. 1917
Inc terms OF the agreement, viz. ito submit
the matter In controversy to arbitration" AZ d
that leach party select an arbiter to decide
tho matter In dispute" indicate no intention
to contlne the arbitrators to the issue made
by the pleadings OF the time of the agree
ment, but point rather TO the Determination
on lis merits Of the real ms,lers in contro.
versy., II may DO doubted whether an
amendment stating in the sltorn. tive an
additional ground for the relief originally
sought, should DO regarded as stating now
case OF action, still 1t was SO closely con-
nected with the subject matter In contro.
versy that II came within tho scopo of sub.
mission. Affirmed. Gould, j.
Burks administrator VS. Bennett; appeal
from Maverick. This was probate pro-
CaQdinU tn pemova nm aduc,o,.s.....