The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-06-01
nop.Is Of Opinions ~ the Commissioners
nj Avyesia-Austis Tern, 1872

tackled on collateral proceeding on Tue
rrounl thu ther yas on fact no serVlo'
where Il rectes either service on or appear
auce by the defendant but |" appeal or
,vr;t of error, the record must show either
service upon or appearance by the defend
ant. az Texas, go; IS Texas, OIL Reversed
and remauded. Watt', c.
Davis & Bro. VS.. saldee ct al; from Falls
county. Where the separation OF husband
and wife is permanent the circumstances OF
such separation are mnidterial on aqne.-
fion of her power to bind her separate prop
erty BY contract. Whether the husband |
abandon the wife or vice versa is OF no con
sequence. 1.-THE separation Is maj she has
full mower over her separate property. ny |
an unnecessary abandonment OF her hus
hanI q wife might forfeit her HON estead |
md oii,er ,ncl rights, but she would not
Iose her riGht 10 or interest in her separate
1,rayerty Reversed and rcmanded Watts, C.
Garlent vs.. Collins ~ Campbell from
johnson county. he afhiavlt and bond in
attachment proceedings cannot be amended
Exceptions must be taken to the overriding
n continuance or motion for a change Of
venue otherwise this court will not revise
the ruling Ailer the attachment was
.uuasbed the property is no longer in the
}iands of the Jaw, and in the absence of an
order tfOiu INV court LOT sucn purpose tue
officer would not he justified in retaining
possession of he property. Some statutory
provision authorizing the party in such
case after excepting TO the ruling quashiug
the process. BE- giving bond, to retain the
property IN custodla legis until The final
adjudication is suggested to the legislature.
Affirmed. Warts, &c.
E.,eming ct al rs Jacks from McLcn-
nan county. A failure TO call the attention
ofthe court TO and obtain Il ruling on mo-
ton To quash the bill of sequestration and
bond will be considered waived Is Texas,
1858; 81 Texas, 49, After Judgment rem
dered, the sureties on the reptevin bond
filed o motion supported by affidavit 10 re-
form the Judgment so as to release them
for the value of The opertv which had
died. Motion overruled. Held. tins mo-
ton is sug 4ested to the discretion OF the
Judge, and unless apparent abuse thereof IS
shown it Will not be disturbed The bur
den OF proofs upon the party claiming to
prove that the property was purchased with
his means. Reversed and remanded
Watts, G,
w. j. Hutchns VS. r. w. Lockett; from
johnson county. This case has already
been before the court upon appeal, and is
now before us on writ of error. There be-
ing no mandate in the record, however TO
show what disposition was made of the
cause on ppeal. We must consider the judg-
ment rendered below as final, and therefore
we can do nothing but DISMISS the appeal.
Delaney, C.
Welsh vs.. Holmes; error from Grnyson
county A judgment by default admits
every material allegation I, the petition ex-
cent the amount of damages. A alignment
by default in case of tressplss fixes the
plaintiffs right forever aud fixes the defend
ants liability. The only province of the
Jury was to fix the,amount. In the present.
case the Judgment establishes the plain
tiff's right to the land. and she could not
waive the damages So far as the title is
>7concerned jury could have been OF no SER
vice, Tor there was nothing to be established
by verdict, and there was no need OF evil
.fience, for everything had been admitted.
Affirmed. Delaney, C.
Timbrell VS.. Pierce; from Caldwell
county. The answer of defendant only set
up that when he bought the land the srI-
Ter showed him a map and the contem-
plated location of the railroad, and alleged
the falseness of the map, but fails TO state
wherein il is false This is no direct aver
lnent that any wrong Was done by plainuff
or his agents or any fraudulent misrepre-
sensations made, hence it was not error to
Sustain exceptions TO and strike out the
answer Affirm I'd. Delaney, c.
Parsons VS.. Smith. ct al, from Tarrant
county. Judgment by default on citation
not served full five days before the call at
stbe case is voidable only aud not absolutely
void. Although the return on the service
is Irregular yet judgment upon it would
only have been erroneous and subject to
reversal on appeal or writ OF error. The re-
turn recited That K Y had been served with
X Y. true copy OF the writ.
with plaintiffs accompanying petition with
this writ certified To ny the clerk of the
court. THIS can only DE considered u cler-
zeal mistake in stating that the writ was
certified by the clerk, instead OF saying the
copy of the petition YVES certified by the
clerk. Affirmed. Waits, C.
Stevens ct al. VS.. Nelson ct al; from Hill
co1sty.N Although a transfer, may be made
10 defraud creditors. still when the prop
erty without consideration goes back into
the possession of the widow, as the repre-
sentative of the community estate OF her
self and husband, making the fraudulent
transfer. their rights attach to it the same
Ms If there had been no such transfer. As
between tile party making such transfer
and his assignee aud creditors the effect of
the ADJUDICATION in bankruptcy was to pass
the right of property TO the assignee and it
might have been followed into the hands ut
the third parties and subjected to the pay
,nent of the debts of the party making the
transfer. Upon the dissolution of marriage
by death one-half OF the community prup.
.ertv shall go 10 the survivor and the other
half 70 the children Of the deceased rhe
question of community or separate prop.
erty Is one OF fact, prlma iace. all property
owned by the husband aud vile at the dIs-
solution of their marriage is their c1mmu
nifty estate. The burden of proof is upon
the party asserting the contrary TO estab-
fish 10 the satisfaction OF the jury. Re
verse and remanded. Watts, e.
Cooke vs. Washington ct al; nom Collin
county. The object Of an assignment Of
error i 10 call the attention OF the court
q the error complained Of and to
give notice 10 the opposite party
Of
pellant relies upon. Where the assign
nent states that the court erred in tour
teen charges given 10 the jury, no pariicu.
lar iniringements Of the law being p,inted
out, II any. the error will be considered as
waived. When there is nothing In the re-
cord TO the contrary the presumption Is m
favor Of the court that II charged the laa
correctly. Affirmed. Watts, C
Freeman vs.. Brundsge; from Dallas
Acounty. When one offers in evidence the
udgment and execution as well as the
Iherifls return upon the execution ana
writ u yenditiont exponers, the party -
Offering IS entitled TO any suitable evidence
going 10 establish the identity Of the land,
fheusl there may be a vsriaDce IN the
petition describing the land as Dot seven
teen" when the documents referred 10
desigr8te II a lot seven. Reversed and
remaadsd Walker. p. ].
Horne vs.. Shamblin; from McLsnDan
county. Though an agreement 10 transfer
Hand i not In writing, il does not bring IA
"a violation q the statate OF Frauds. IL l.
not against the statute Of frauds where the
contruct asserted that in order 20 enable A
q pre-empt the laud. B. agreed and dif
nut M house and made other improve
uenfs on the land TO enable A. 20 obtain
dtle. A agreeing 10 deed b 81 scres - the
land upon acquiring title. Reversed ana
reman1ed- Waite. E.
lsrnopi- Of opinisns OF supreme Court,
Austin Term. 1ss2