The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-11-02

RIO Texas, $50; % Texas, 100; 80 Texas,
537. Although the dating on the back o {
the citation one year previous TO its in
surance was mere clerical error, yet it
cannot be disregarded when it is basis
for judgment by default. through ordina-
rily il would not avail. Reversed and
remanded Wilson. j.
Watson VS.. state; appeal from Travis
county.-It is not necessary to state the
rame of the first wife in an indictment
for unlawfully marrying q second time
when the first wife is living. The de
fence relied on was the belief that when
appellant married the second wife he be-
lieved the first wife dead. Held, The
charge should have contained substantial
" articles torty-tive and forty-six of the
penal code, leaving the jury TO determine
under the facts and circumstances of the
peculiar case whether the mistake of the
defendant arose from a proper care on
his part. The question of proper care
depends upon the facts of each particu-
lar case What would be considered
proper case in one person might not be in
another. Reversed and remanded.-
Wilson, j.
Stanley VS.. Conrad Il Logeman; from
Hill county.-An affidavit to an account
failing to contain the statutory words
that "the account is within the knowl-
edge of affiant," etc., is insufficient and
not admissible as evidence. The petition
herein was fatally defective in stating
that appellee's residence was in st. LOUIS
and that of appellant was not known,
and in failing to state that appellant own
ed any land in the jurisdiction of the
court. A demurrer should have been
sustained. ITO Tex. 2SS: 10. 1856. The
facts alleged of no knowledge of the res
idence of the appellant was not sufficient
to rebut the evidence of the residence of
appellant In Erath county. [33 Tex.
500; Al Tex. 622 A proceeding by at
| tachment where the writ is levied on land
! is a suit to foreclose lien thereon, and
the county court has no jurisdiction to
try the case. Reversed aud remanded.
Wilson. j.
Gulf, Colorado & Santa Fe R'y. VS..
Graves; appeal from Washington county.
| Suit for damages brought by appellee for
| damages TO lot alleged to be caused by
obstruction and destruction of street by
defendants road bed, said street abutting
on the lot adjoining. Judgment $500
and COSTS The opinion is quite lengthy
and reviews the authorities throughout
IN thorough, mastery manner, cOnclud-
ing briefly-under section II of the bill
of rights, Notwithstanding the property
of the plaintiff was not actually taken yet
if it was damaged by the construction of
defendants road, she is entitled to recov-
er compensation to extent of such damage.
The following charge in effect was cor
rect The plaintiff had an easement in
the street, the destruction of which was
such taking of her adjacent land as
would entitle her to recover for any dam
age done thereto. Affirmed. Wilson, ].
1.-THE New York court of appeals re-
Gently decided this question in the same
way, but this case was decided before
that was published. 1t is the first GEN.
structiOn placed on section II of the bill
of rights, and it changes the rule as laid
| down by the supreme court in former
decisions.
The Texas Pacific railroad company VS..
Margaret Ellen O'Connell, by her guar
dian, William Behan; appeal from Bowie
| county, feel constrained to dissent from
| the majority of the court in this case. 1t
| is shown that the mother Of the child vol
unfairly resided on the place Ut which
| the accident happened, and that it was
within few feet of the track of the road.
That she knew of the approaching train,
and recollected at the time that the child
might be injured. Under these circum-
| stances great care was due on the part of
the mother. But without expressing an
| opinion whether the contributing negli-
gence of the mother should be imputed to
| a child of such tender years as the plain
| tiff's, 1, however, think that the judgment
| should be reversed on other rounds.
There is great preponderance of evil
dence against the verdict. 1t cannot be
wrongfully on the track, a fact which the
employees on the train were not bound to
| anticipate would happen, further than to
use ordinary care to discover possible
| dangers. The tram was running at a rea-
sOnable rate OF speed. The only eye-wit-
nesses to the faets-the engineer and fire.
man--swOre positively that they were at
their post of duty and on the lookout, and
that as soon as they saw the danger they
used extraordinary efforts 10 avert it, and
| save the child, both at the risk of their
| own lives that nothing was lett und0ne
which they could have done. The circum-
| stantial evidence does not necessarily
conflict with their positive testimony,
which, under the circumstances, should
| be entitled to very great weight. The evil
dence shows that the child's tracks were
obliterated at the place where the engine
came in contact with her. In cases where
| there Is q great preponderance of evil
denee against the verdict, do not under
| stand the true rule to be that the verdict
should be upheld, because, perehance,
there might be some evidence upon which
the jury might have found, but that the
| testimony to support the verdict should
| be so reasonably certain and sufficient as
to show that the jury did not err. 1 do
not think the verdict and judgment in
this case were warranted by the testimo-
ny. am further of opinion that under
the circumstances the judgment was ex-
| cessiYe