The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-06-02


Court of Appeals.
Mckee Of aL vs. Le0o,ie Of ali appeal
from Guadalupe This was n sui, against
Mckee who In BIZ. capacity rs oonsta 10 had
levied upon fifty head of cattle rs the prop
orty of l.. u. LeGette, but claimed by the
wife us her separate property. Tho return
of the constable showed tho levy as charged
aud that fifteen head had been sold. There
was no evidence rs TO what was done with
tho remaining ,hirty-ave head, the court
having refused 10 admit the testimony OF
sppellsnt's witness Nv to what became OF the
rest or what disposition was made OF them,
| With the exceptions aforesaid 1t may be that
the cattle we're never moved by appellant
from their accustomed range, or If moved
that they might have been returned TO the
possession of appellees. The existence Of
such facts would certainly initiate against
tho damages to which appt lees might be
entitled. The testimony thus sought could
not be said to DO obnoxious to tue rule that
an officer will not be permitted 10 contra
dict his return. The eviderc es cught.to BIO
elected by the questions propounded was
admissible. Reversed and remsnded. Watts,
| Commissioner.
Ring We. Smith ct al.; appeal from Fan.
min. Tho appel ant, Ring, was the sole sur
wing constituent of the family at the time
of his mothers death; he WAS then minor
81 the other children were married and had
ldren of their own. The law in force NJ
time of the mothers death. in 1878,
led the 10 uestoad right in the appel
lat as the surviving Constituent of the fam
ily. 1t was not necessary for The probate
court ~ designate and set tue same aside TO
him, for in such cases the law declares that
the homestead did not constitute any part of
the estate. He Was entitled TO its use and
occupation together with the fruits and
revenues thereof until he arrived at full age,
Independent of the claims of creditors or the
rights OF tho other heirs. 1t was never in
tended that the constituent of the family
should be nothing moro than An involuntary
lessee OF the homestead on credit, the rents,
revenues and profits of which he would be
compelled to account for at his majority.
Such construction of the lax caunCt be
m maintained. 2 Generally our tenant in
common cannot maintsin an action against
his co,tenants for any part Of the rents and
profits of the common property in the ''b'
sence of special agreement between them
to account for rents McGrsdy VS.. McRse
Reversed and remanded Watts. Commits
sioner.
Lackie vs. Bramletl; error from Frio
l. 1t has been oft N held that the county
court has no power 10 issue the writ of in.
JUNCTION except to enforce lis jurisdiction OF
ancilary to some proceeding within its
jurisdiction. Tex. Law journal 1879 575
Frederic vs. Shea, Austin term, 1880
IL The county court has no control over
the proceedings in IA justices court except
such ia acquired by the means prescribed by
law, that is to ssy, by appeal
or by the writ of certiorari. 8
Iniunc.ioni 5 not the proper remedy
agains! an execution issued upon a void
Judgment rendered in justices court, al
least it this case. Motioa oouli ba made
before the justice to Get aside the execution
issued upon void judgment, and from his
Judgment ON that motion an a. peal would
lie. If Injunction was the proper remedy
there was nothing in the petition to show
any equity 10 require its issuance There is
no allegation or showing that the legal
remedy in the Justices court was not full,
adequate and complete. Sec l6, Art b, Goa
1875; Harrison VS. Crumb, Galveston term,
1881. Nor is it shown why lie did not
appeal or prosecute his writ of certiorari
in due time. Equity aids only the dill
gent 81 Cal no. Highou Injunction
l3l Re,eraed and dismissed. Qlinan,
Commissioner.
Young vs. Buckley; appeal from Bexsr,
The state provides that in lieu of an appeal
bond the appellsn, may make and file an
affidavit that she Is unable to give bond
and security for costs as may be required By
law" An affidavit made by an agent or at,
tori ey in fact shat he knows the plaintiff by
reason of his poverty is unable to give the
appeal bond in this csse'' is not in compli-
snce with the statute 43 Texas, 653; 40 Tex.
az, 697. The motion to dismiss the appeal
ought to have been sustained by the court
below. Judgment reversed and appeal to
county court dismissed. Watts, com'r.
| johnson ct al vs. Doss; appeal from Young.
| This.wss suit in justices court for the recov'
cry of the rent of certain premises. appealed
| afterwards to county court, where to prove
their right to recover the rent, johnson and
Brisn offered in evidence ce-tif cate
copy of a judgment sgsinst GoodeD. the
! landlord of Dos', and execution issued Tire =
on, a levy and sale, return of sale and sher-
| ids deed to them MS purchasers of the lend
for which the rent is claimed. Upon obisc-
| tom this evidence wa 9.e,-ded mon tho
ground "that it raisel the question of title "a
The premises" II Id, that the evidence 7as
on stefial to prove the right TO recover The
rent BIZ sbowipg the ownership of the prop.
erty. The sale Of the land uLdor the e&ecu-
ton carried with it all the rent becoming
due subsequent TO the transfer. Page,
ch. 6S3; l6' Wis al; 8 Paige 392; 3 Watts
S94; A N Y.270; Kent $50; Taxas Law
ilurnal VOL 8, 642; 10 Texas GAG; 81 Texas
2S7. (2) Article 1924 r. 3. is modified by
act of 1879 psge 26, so that the affidavit of
the witness absence In ord TO lay the
predicate for the introduction of his deposit
lion, is no longer necessary. Reversed and
remanded QlinaD, Commissioner.
Henry et al vs. Mcdaniel; appeal from
Dallas. /. An agreement between the
payee and principal of note whereby for a
valuable consideration the time of pay mont
| IA extended beyond lie maturity will relesse
the security. 8 Tex So; "a Tex 300. The
burden is upon the security 10 prove the
agreement, but no more certainty In the
.nount or nature Of the proof Is required
thsn in oth,r civil cases II wss error TO
charge that the fact must be proven TO the
'ientirs satisfaction" of the jury. AZ Tex 1873.
Upon proof Of the agreement the security
a prims facie released, and II was error TO
| ch.rra that the bufden WAS on the security