The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-02-05
synopsis of Opinions of the Court OF
Armenia

Appeals.
Prepared for the Herald by Edward j Ham,
ner, Of Galveston.l
H. & j. Stone VS. L 6 j. Martin; error
from johnson county. PLAINTIFF petition
filed in the district court February 10, 1876
prior to the time that the constitution oflS76
went into effect Writ of attachment issued
June I, 1876 by tho district court. Suit was
pending in the district court from the time of
its institution until July l, 1876, when it was
ordered transferred to the county court.
Question: Did the clerk of the county court
have authority to Issue the writ of attach
ment! ave are of opinion that until the
transfer was ordered the clerk had
authority 10 issue process in the csse; any
other ruling would be impractcable for the
reason that not to SO apply tho law the ends
of justice would often be defeated for the
want Of competent authority to issue extra
ordinary or even ordinary process" At
frmed. Winkler, j,
William Bryan VS.. George +. Afford; ap.
peal from Dallas county. Suit by appellee
against appellant for balance due on q
promlssory note. Defence was that suit was
pending in Navarro county. Held: THAT
the tendency of that suit, whether it involved
in it or not, the question whether the note
sued on in his suit would be enforced, or, in
other words whether the contract for which
this note was part should be resciuded or
not, did not furnish any ground for prohibit
ing the plaintiff in this suit from suing on
the note" Here the plaintiff in this suit is
not the actor in the other The exemption
afforded rs to lis pendens does not operate
to restrict o. restrain either party from the
maintenance OF any additional suit besides
the original. Affirmed. Winkler. J.
Emily Greenwood and Jane Greenwood
VS.. j. A. Watts; appeal from Karnes county.
The appellants sued out an injunction to re-
strain the defendant and the sheriff of Carnes
county from selling under execution certain
property, which they alleged to be theirs, and
prayed for damages. The defendant moved
TO dissolve the injunction for the want of
equity, and for damages against plaintiffs
and the surete5 on their injunction bond.
Motion sustained. JudgmeRt rendered for
defendant for damages. No statement of
facts in the record. The appellants in their
petition prayed that the sheriff might be
made party defendant. Held, He was not g
necessary party to the suit. The bill is prop
erly against the plaintiff in execution and
without joining the sheriff, all the relief
prayed for in this bill, "a against him, could
have been obtained. In the absence of a
statement Of facts We must presume that
whatever is necessary to warrant the iudg-
ment was proved. Affirmed White ?. j.
Houston & Texas Central railroad com.
pany vs., John A. Peal; appeal from GrAyson
county. The bills OF lading contained macy
Limitations of liability on the three roads
which were contemplated By il for carrying
its goods. The contraei was made in Louis.
lana. The law of Louisiana wss not prove
to be different from that of Texas 10 the
absence OF proof to the contrary, it will be
presumed that the law Of Louisiana is the
same as that ia Texas If it be not proved 10
be other wise, so far as relates TO the deter
mination Of the rights Of parties in our own
courts. O ntracts which are valid iu the
state whore they are made, but which SIRE to
be performed In a state where they are in.
valid, will be held in the former state as gov
erned by the laws Of the latter state, and
therefore invalid. Affirmed, Winkler, j.
W. o. Diboll VI. II. j. James; appeal from
Dallas county. This sui was founded upon
lhDOr
Held, Plaintiff could not recover, unless
there was contract express or implied, with
the defendant to do the work charged for,
but ordinarily the measure of his recovery
would be the value of the work, unless
price had been agreed upon. The court as
sumed from the evidence that stipulated
price had been agreed upon. Held, That it
was error in the court assuming such, as the
Oh bnt Lany a.
jury. Reversed and remanded. Winbler,
judge.
w. @. Keller, receiver, etc, vs.. G. S. Mitch
ell; appeal from Dallas county. Appellee
was sued below for the unpaid assessment
against him as a stockholder and charter
member of the. Southwestern Life Insurance
county. The ASSESSOR sets up, that the full
amount of minimum capital stock was never
subscribed, that sait company had not the
amount of capital required by the statute.
Judgment for appellee. The case of Gal.
weston Hotel company vs.. Bolton is cited in
support of the judgment, but the court say
it is in no wise analogous. 1t is not necessary
to sustain the action that the whole amount
named in the articles should have been subs
scrlbed. Reversed and remanded. White,
p. j.
a. W. GLupbus,u " W. vs. VI pJep060S et
els; appeal from Fannin county. Appellants
having judgment against one Woods gar
nisheed appelees on note given by him to
Wood on which it is alleged there is a bal
ance due of Sls2 As. Woods being notified
by garnishee that he had been gsrnisheed
answered, "If plaintiffs do not recover on the
garnishnent, shall want tho money by the
first of April following Held below that
the evidence was insufficient to prove that
Woods had not transformed the note. On
this the court say, "The court below erred,
and the Judgment will be reversed and 70.
manded" White, 2. j.
CASTOR y Thomas vs.. w. s. PARK; appeal
from Dallas county. 1t is not necessary to
make any statement of this cae., tho msin
question being whether or Ut AN appeal can
be taken from n judgment ia justices court
in case of forcible detRiner Rep. This
court cite the acts of 1876, defining the
powers AMI Jurisdiction of justices OF the
peace where the right is plainly denied, but
the case must BIO taken up by writ of GERS
tiorari, Reversed and remanded. Hurt,
judge.
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