The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-17
COURT DECISIONS.
synopsis Of Opinions of the Commissioners
OF APpeais-AastiR Term, 1882

Travis county. To authorize reversal Oh
the iudgm ent in the absence OF a statement
Of facts because oferror in excluding evi'
dence, il must be made apparent that the
court erred as well as that such error with
reasonable certainty produced a substantial
injury to the complaining party. 1t is the
duty of the party seeking to have rulings
ofthe court excluding evidence revised to
show by statement of facts that such evil
dence so excluded was material and he was
Injured by its exclusion. Affirmed
Watts, C.
James Z. Brown vs.. Lucretia II. Rcntfro
ct al; from Travis county, To enable q
court to vacate former decree where the
question was fairly submitted to jury, the
appellants insanity or mental disorder
should have been declared by verdict of the
ipry, both at the time of the execution OF
0he agreement and the rendition of the de-
cree. The practice of rendering Judgment
non obstante veredicto is not encouraged OF
extended to cases not heretofore embraced
within the rule. The class OF cases hereto
fore embraced in the rule are where the de-
PENDANT admitted plaintlii's CAIN, put set
ting up some matter OF avoidance, that IN
law constitutes flU utltIltNt Oili Nllbi
the jury has found for defendant. When
such occurs the court determines as mat.
ter of law whether the matters constitute
an obstacle TO the recovery of plaintiff or
not. Courts should grant new trials or ar
rest Judgments where pleadings do not sus-
tain the verdict. IT, as alleged, plaintiff
was non compos mentis at the time the
agreement was executed, and the decree
was rendered in the absence of proof OF a
confirmation or something of that kind, he
should be entitled to have the agreement
annulled and the decree vacated. Reversed
and remanded, Watts,c
J. s Douglass vs., Il. M. Mundine ct al;
from Lee county. Where case is decided
on one issue and error was committed on
another, which was lmmaterial to the issue
found on, the error is immat erial. BE
cause debtor is in default in paying u
note, the creditor, without mourning liabil-
itv, cannot innict loss upon the debtor
through his negligence and fault When
collateral notes constitute the available
property of the debtor, from which he could
pay the debt and without them he might
not be able, il is unjust to hold that, being
upable to liquidate such without these col
laterals, that the creditor could, by his
negligence impose such u loss without in
curing liability for the same. Affirmed.
WattS, G.
G. II. Taylor vs.. Hamilton McNutt; from
Washington county. The general rule that
IL Is the duty of the court to give instruc-
tions ON the legal effect of written evidence
has Its exceptions. When the effect of the
writing depends also upon extrinsic facts
and circumstances, it becomes tho duty of
the court TO submit to the jury such in
strnctions upon the legal effect OF the instru-
ment as would meet the various phases
presented by the cxtrinsic evidence when
IL submits to their consideration the instru-
ment together with the attending facts and
J circumstances adduced in evidence. Coun-
el should be confined in their argument to
the issues made by the pleadings, and to
which evidence had been adduccd. Re
verscd and rcmanded Watts, C.
George Dunn VS.. Stallworth ct al, from
Falls county, If the description of land
given in the grant is so vague and indefl-
nite that it cannot be ascertained from it
what land il intended to be conveyed, then
the grant will be deemed null and held
void. But where in the calls OF the grant
any matter Is given by which the land IN.
tended to be conveyed can be found and
identified, then the grant is not void A
copy of field notes made in English at the
time of the survey lin 1880 is admissible to
aid in establishing the survey upon the
ground. Where the party asserting the
limitation had the actual possession of part
of the land in conflict, cutivating and us.
ing the same and claiming under n prior
grant and deeds emanatng under the
grant. a charge on tho limitation Is neces-
sary. Affirmed. Watts, c.
Greenwood VS.. Pierce; from Caldwell
county. Where u lot was sold with refer
ence to map and the representations that
road would be constructed and depots
erected as thereon delineated, and the pur-
chaser was thereby induced to make tho
purchase, then these representations arc
obligatory upon the seller, and u failure of
compliance Herewith is detrimental to the
seller. The measure If damages in such
cases would be the difference between the
contract price and the actual value Of the
property AvermentS of Incorporation
mu6t be made in order 10 give rise to the
presumption that such was corporation.
Reversed and remanded. Watts. Q.
Coombes VS.. Thomas ct al; from Dallas
county. The objections to the deed made
by married woman that il does not show
that she acknowledged the deed to be her
act, and that 1t failed 10 show the delivery
of the deed by her, ora declaration by the
officer that said deed was delivered by her,
are untenable, (i6 Tex. l9t 81 Tex. ,5679,nor
is the ground that IL failed to show any
privy examination of the wife by the OH.
Ger taking her acknowledgement, well
taken. Reversed and remanded. Walker,
pc.
Dallas Compress company vs. Bryan ct
oil; from Dallas county. II being alleged
In the petition that Il, V. Tompkins was
the president of the Dallas Compress COM
pany, the service Of citation made
upon him, rs such is IN accordance
with the statute acts, 1874, y, 81, A
defendants name being properly given il
Is not necessary that it should show that
the defendant was served IN person with |
copy of the writ and petition Us the statute
requires. Super added description in de.
cree being mere surplusagc, will not vitiate !
such. The Judgment must conform to the |
allegations In the petition in order to con.
sti,ute legal basis on which to predicate !
IL. @ Tex, S05; - Tex, 1897 The alteration
made must not admit ofany mistaken idcn- |
tity, or II cannot be held immatcriul. co |
Tex, aS) Judgment by default admits
every avermcnt In the petition except the
amount OF damages. "a Tex, ISL; II Tex,
IS; - Tex, 81 Reversed and rcmanded.
Walker, &c,
Mary X. Anthony ct al, VS.. Gwynn Nor.
rison; from Fannin county. The |
manner prescribed by article 7 |
Pas. Dig. for continuing the nd. |
illustrators successor being the same AZ
that provided In respect to defendants DIV. |
ing before verdict, the same rule OF pro. |
oeeding must be observed in regard to both |
classes Of defendants. Suggestion ofthc re.
a. IL a.