The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-11-03
THE APPELLATE COURTS.
synopsis of Opinions of the Commission of
Appeals, Tyler Term, 1882.

III Tut VIA VI dNAtliAl'lAS tiHi NAt fiNuAlNo
theyeiOr. The transcript of u judgment of
another court failing to contain the certlh-
cate by virtue of which tho land was 10.
Gated. nor 10 show tina, defendant was Ia
any way connected with the judgment, nor
tina: plaintiffs, rs heirs, recovered the ques-
toned bounty warrant was properly eN-
cluded Though slight evidence yet beng
upon an issue in the case the will OF Graves
was Improperly excluded, 1t tending tO|
show that IL passed the land TO ii. The eX'
cludCd deed to Truoheart in connection
with other evidence sufficiently described
the land Reversed and romanded. Watts, /.
Hair ct al. VS.. Wood ct al; from Falls
county. one Barney, in his lifetime, CON
veyed his homestead unjoined by his wife.
The deed was afterwards declared void by
the supreme court, Alter his death, amt
after the supreme court had declared vO,d
the deed, his wife conveys the homestead TO
her husbands vendee. Now, the question
presented is could the wife validate her
husbands deed by conveying the same
land TO his vendce after death, and preclude
the children from any rights they may
have. Held that she could The convey
ance OF the wife, though made after her
husbands death validal ed the conveyance
and the children accrued no rights under
the decree OF the supreme court declaring
the deed void after it had been sanctioned
by the mother. Affirmed. DELAY,
Judge Watts dissen.S as follows. do
not concur in the conclusion reached in
this case by majority OF the commission.
Tho conveyance of the community home
stead by the husband, without the con-
sent OF the wife, was inhibited by the or.
ganic law. The conveyance was invalid,
but under the decisions Of the supreme
court, the wife alone asserts its invaIidity.
al. huI nd .tI
judicial declaration TO that effect, in my
opinion the conveyance was void for all
purpose and to all persons After the SUI
preme court adjudged the deed of the hus-
band void, the vendCr and those claim
ing under him, did not have
the shadow of right to or interest in the
land, by reason Of that void and annullrd
deed. The property was, therefore, vested
in the wife and children IN precisely the
same way, as II the deed had never been
executed. This being true there is no fact
or circumstance disclosed by the record
that would authorize the widow TO convey
the interest Of the children in this COM
munity property; johnson VS.. Harris, IS
Texas, $50 The conclusion reach is that
under the facts aud circumstances disclosed
by the record that the children are en-
titled to recover one-half Of the and sued
for, and that, therefore, the Judgment ought
TO he reversed and the cause remandcd.
kordZick vs. Crate 1T al. from MCCul-
Tough county. A party must except to the
charge or ask additional Instructions or
the error, unless manifest aud calculated TO
mislead the jury, will not be revised. The !
facts authorizing the verdict and the Jus. !
tice OF the case being reached, error in the |
charge will not be noticed. A drawer of an |
order is not prima facie liable, il the inles |
tate fails during his lifetime, and atterward
his administrator to present it, until the !
drawer becomes insolyent. Crate sold |
Murphy cattle for $500 to be taken back
II he lhlied To get the contract to supply the |
government. Crate owed kordzlCk So 900
on the original purchase. He gave an or
der on Murphy for the money. Murphy
knew of it. 1t was not presented to him.
Held, Crate drew the order in good faith
and Id entitled to be protected from liabil-
lily from the failure OF the holder to present
IL. Affirmed, Walker, p, ].
Widener ct al. vs. ShoObrldge ct al. from
Wise county, The supreme court can sci.
dom attempt to revise errors in the charge
of the court below in the absence OF state.
ment OF facts; % Texas, 49, 81 Texas, $50; %
Texas, 90 IL does not appear TO lis but
that from the Judges conclusions of law
the plaintiffs heirs could have recovered
under the evidence adduced without and ir-
respective of the construction put upon the
tax decd offered by defendants in evidence.
a transcript must contaia in writing the
conclusions OF the Judge, both as to the
law and the facts. The conclusions of law
complained OF cannot be brought into re-
vision in the absehce OF statement otfacts
or the written conclusions of facts found BY
the judge. Affirmed. Walker, y. /,
Fitzgerald vs.. Smith, from rarrant
county. Appellant sued out subpoena
Tor an alleged Important witness. 1t was
returned unseryed, he being temporarily
absent. delay was had until ten DAYS
before the trial, when another subpoena was
issued and likewise returned unseryed
Held not sufficiently due diligence for
continuance. Prior to the adoption OF our
Revised Statutes, one tenant in common
could maintain al action of trcspass to try
title, his oo.tenant not Joined therein l55
Texas, PIP, or plaintiff being a co-tenant,
you'd continue IL maintain such action be-
gun, although his co-paintitr had discon.
tinucd or abandoncdt he suit; (27 Texas, 66D.
II the land is sufficiently described in the
grant to identity the land, it will be held
valid, Evidence of limos, courses, distances,
etc, by general reputation IN the noighbor.
hood to prove boundaries and surveys, is
admissible; (2S Texas, 6O5; ~ Texas, 3l6l AE
firmcd. Watts, !.
Bigham VS.. Talbot ct al; from Comnnchc
county. An ameudcd pleading being filed
must be served upon the opposite party or
the record must show his presence in the
courtroom when the trial was called, either
III person or by attorney l27 Texas, III; 30
Texas, %; - Texas, ~ A filing of his
written answer to such amended petition
does not change his status. II is fatal TO
10 the Judgment if his motion for new trial,
supported by affidavit disprovc service
upon him or his presence, either by attor.
ney or in person, when the trial was called,
Reversed and remanded, Watts, |.
Todau and wife vs.. City of BRENNAN; from
Washington county. The city authorities
have no authority top pass ordinances impos.
ing n tax for school purposes IN amount to
over OF per cent, aud such tax could
only be levied once II year. The Cons,itu
ton OF 1869 gave lien against the home.
stead for taxes due by and assessed against
IL only. Here five lots were aggregately
and an attempt ismadet sell the
for the aggregate taxes, A iudg.
mont giving n lien on any one traci''of land
for taxes due upon another tract is In.
valid, (j3 Texas, ldl, ~ Texas 5O6; 40
Texas, 763). A homestead cannot be sold
for taxes due upon any other land Of the
owner. nor can q lien be created upon such
for the aggregate taxes assessed an the
whole possession. Reversed ANA remanded.
Watts, ].
Burlington VS.. Newland ct. AL; from
Brazos county. The parties, plaintiff and
bought piece OF land Jointly, II
was formerly Newland's homestead. Edr.
Ington paid In proportion to two out OF
Ih,oa nf fhn nurchnsc monpy taxing titlp