The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-01-27
COURT DECISIONS,
syllabus of Opinions of tho Commission
ers of Appeals, Delivered at the Tyler
Term, 1881.

|
in Justices Court on Aug. 30. Appeal bon,
to County Court was filed September 10
Held, that under Article 1898, r. s., tina
where the right of appeal from Justices /,
County Courts 1.-THE judgment exceedin,
SD obtains, the appeal bond mus
be filed within ten days-otherwise the
County Court acquires no jurisdiction, and
can direct no proceedings in this case. Tn,
record i'll this case disclosing that the bono
was filed subsequent to the expiration O
the ten days allowed by law, the judgment
IS reversed, and the appeal to the County
Court dismissed. Appeal dismissed
Watts, C.
City of Brennan vs. Birker; from Wash.
lngton county. This was suit against the
city for damages arising ont of yariou,
prosecutions for violations ola CITY ordi-
nance, and to perpetually enioin the city
from further interference with the plaintiff,
1t was shown that the City Council had con.
tracted with one s. for the rent of a house
to be used as n market house, and obi
| gated the city to pass ordinances, from time
to time, to protect s. in the contract
| and to retain such house as the only mar.
ket house in the city for a period of fen
years. :. was to receive the entire revenue
arising from the rental of meat stalls for the
period indicated. Held, that such contract
was i'll contravention of the bill of rights.
and was invalid. But the city ordinance
| passed declaring such house to be the only
market-hOuse, being the exercise of power
delegated by the charter, is not for that
reason invalid, Where party has annie
| legal remedy he cannot resort to equitable
proceedings. Reversed and cause dismissed,
| Watts, C.
| Eakin VS.. Home Insurance COMPANY,
from Lamar county. Petition in a suit for
the recovery of insurance money on build
| ing destroyed by fire, described the prem
ises as they were described in the policy
an important feature being that it was a
"one.s story house" Preliminary proof of
loss described it as story and half, but
otherwise as set out in the petition and
policy. This evidence was excluded
on the ground of variance with the
description given in the policy and the
petition. Held error; that the evil
denCe was rendered to establish the iden.
tity of insured property, and not to enlarge
or abridge the contract and should have
been admitted. Where il is evident from
all the facts attending u case, that the
ruling of the court in the progress of the
trial. u party was cut OF from trying ms
cause ON the merits or deprived OF any
other right, though in strictness the ruling
may have been correct yet if it is made TO
appear that the default ofthe party was not
ineXcusablc, aud he presents u prima lacie
case of merits, he ought 10 be allowed n
new trial. Reversed and remandod,
Walker, Z.
Wilson VS., Griflln;lrom Rusk County. The
writ OF certiorri is granted as matter of
right, but lies within the discretion of the
court Application therefor should show
that appellant has rights, or valid defence
OF which he has been deprived by the erro-
neous action of the inferior court, or that
without fault of his, or want of diligence he
has been prevented from presenting his
defence, y Tex, 1913, When defendal [
fails without good cause shown to make his
defence before a Justice, it has been held that
nc is not entitled to relief through the writ
Of certiorari. II Tex, GU. The plaintiff
is entitled to no better protection, but is
required to appear on the day citation is
returnable, or any day To which the court
shall be continued, to prosecute his suit,
The petition showing a total failure to cN-
erCise dclinquenCc in obtaining service ON
two OF the defendants makers of thc
note, and an absolute neglect of duty ON
part of plaintiff in falling to appeal before
the justices Court to prosecute his claim,
! the action OF the County Court in dismiss.
/ ing the writ otccrliOrari was not error. In
/
| the Justices Court in this case was intended
as q lnality 10 the litigation, it was
not n final judgment, and in
Ia strict technical view it ought
| be held that Certiorari will not lie until NJ
/ ter final Judgment. II Tex. 81. But
/ whether final or intcrlocutory, the case
could not be prosecuted against two defend.
ants not served and whom, consequently
/ it could not affect. Affirmed. Walker. .
! Lynch II Lewis VS.. Marowits Bros. d.
I Strauss; from Hopkins county. An anda.
Wit for punishment should state the
amount claimed to be due, for which tho
garnishmcnt is invoked, And it should,
also, state that the ailiant does believe
that the garnishoes We're indebted to the
debtor That ailapt "hNs reason TO be-.
liove, is not sufficient. Nor can reference
be made to other matter or proceeding i'm
order to ascertain and determine
the amount of the Indebtedness claimed ia
he due, but the amount should be shown
by the Indebtedness claimed To- be due Inv
the ailldavits made to obtain the writ. Tho
affidavit must also state the fact upon which
the statute authorizes the writ to issue. and
when this is not done, upon proper motion
the affidavit will be quashcd aud the pro.
ceedihgs dismissed. Reversed and dis.
missed, Watts, c.
Holmes VS. Johns; from HAYS county.
Prior to the law of March 20, lS,3, all salos
made lay Colonists of their headlights before
The lapse of six years from the date of the
title, were void and after the law of March
NJ, 1891, up to the Constitution of the 4. b.
! public, sales, aud agreements Tor the sale of
lands Ivy settlers before the final title, Is.
sued by them, were nullitOs. The sale of
the land IN this case from $. n 5. IN L..
was void under the decisions m Is Tex.
| lI0, and Williams vs.. Chandler. - Tex, for
| rcUsons above set out. Where relief has
been given m such eases Il has been be-.
cause of long possession, long acquicscencc
IN the sale by the parties or heirs, valuable
improvements, etc., and not because of pur.
chase or payment. PlaintiilShere allcgc no
facts upon which TO basc claim of equitable
utle-have never been IN possession, show
no proof OF the ratification of the sale by
>, anu their deeds were not recorded until
attera lifetime had elapsed and theland had
passec by transfer to defendants The re-
iusai 70 return the purchase money cannot
validate sale prohibited by law. The rule
that where vendor sells without title, II
title Is afterwards acquired II insurcs to the
purchaser, does not apply to sales prohip-
Quinan, c.
Cassidy vs.. Smith, administrator, from
Travis county. The principle upou which
the doctrine of res adIudicata IL founded. il
that there has been n final and conelusiyo
adjudication and determination of thr mat.
tiers involved. that the parties have had
their day In court that the case In,
reached the end of the law. aud n final
Judgment has been rendered. With us. by
statutory pnnptmant hut 40. t,.ai l...ts