The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-04
SYNOPSIS OF OPINIONS.
Reported Expressly for the srArEsxAs.l
Supreme Court.

Reported Expressly for the sTATEsMAN.l
Supreme Court.
I.& G. N. railroad company VS.. Joe H.
Stewart; error from Travis county. I'm
less objection made at the time, waiver
and consent OF the parties Will be pre-
sumed, where the jury after retiring re-
turned into court with q verdict which
the court refused to accept, and the jury
retired to consider further of the verdict
under the direction of the court. 1t is
only where there may be doubt that the
court need not charge upon the weight OF
the evidence. But when the evidence is
positive and not disputed, the
same is to be taken as an established
| fact, and the charge should be upon that
basis, III Tex. 3S7l. Appellee recov-
cred a judgment for $1525 for injuries
| from a fall of the platform of the freight
| depot of the company in the city of Aus
tin, the fall being caused by neglect OF
the appellants in failing to provide
proper lights at place where 1t landed
its passengers. Appellee had come in
as passenger on the train just then.
Affirmed.-Stayton, j.
Mary 2. Braden ct al VS.. John A. Gose,
sheriff. ct al appeal from Lamar county.
Appellants brought suit to enjoin the
sale of a portion OF a certain tract of
property, purchased with $500 gwen her
by relative as her separate estate, and
$500, the accrued interest thereon. Held:
The interest accruiDg on the money, the
separate estate of the wife, is community
and land purchased with money, the
separate estate of the wife, and the ac-
crued interest thereon, is subject to exc
cution as community property, in the
proportion that the principal bears to the
accrued interest. Aftirmed-Stayton, j.
j. W. Flemming VS.. Jno. f. Shelton;
error from Tarrant county.-When the
record shows absence to the contrary,
| the legal presumption is that whatever
evidence was proper to support judg-
ment by default in this case was
the plaintiff; and the substituted proceed
| ings having furnished certified copies
ofthe petition and note, the originals both
| having been destroyed, secondary evil
| dence was admissible, and it is presumed
that 1t was offered. Nothing being coll
!, tanned in the record to warrant the ,,reas-
| enable supposition, that this writ Of
error was prosecuted for anything but
| delay, the judgment is affirmed with ten
| per cent. damages for delay. The certi-
ficate of the district clerk of an agree
| ment by the parties to dismiss, after the
record had been filed in the supreme
court, filed among the papers, does not
COuuc up buC plOpCI W
be noticed Walker, p. G..
Heirs of VIM. Gatlin VS.. Sterling Organ,
ct al; error from Williamson county.
The jury found in favor of the appellants
as plaintiffs for the land, and for
| appellees for a certain sum for improve
ments and for amount of rents due.
And the judgment making an absolute
| forfeiture of the plaintiffs land without
| compensation, in case he fail to comply
fhaf 81 6oo 1.
months afterwards, is repug-
nant to natural justice, and
in violation of law. In view of an
| other trial the court observes to the eff
feet, that, gen orally, a defendant who
does not assail the vail 1ity of the plain
tiff's title, should not recover for i'm
provements because he had mistaken The
| boundary line, in the absence of negli-
gence by either party. Reversed and re-
manded.-Wa ats, G.
Pauline T. Sellers We. Ann G. Vegel
ct al; appeal from Comal county.-Their
mutual equities should be adjusted, if
parties to suit unite in asking for a
revision of a contract for the sale of
| lands. When the vendor had a superior
knowledge which the vendee could not
obtain by diligent observation, and there
| is evidence of q Misrepresentation of
material facts by the former, the court
below erred in refusing to charge upon
the validity of the sale made through
such representation, the suit being for
foreclosure of the vendors lien, and the
alternative relief Of a RECESSION ofthe con-
| tract, and a restoration of the land being
| asked. The purchaser has a right to have
| his purchase money and the interest that
| remains after deducting the reasonable
| rents, when the facts show such fraud
| as will vltiate such sale, and entltle
party who has purchased and paid part
of haa fhar inn fa n mil afn Nf hn
contract. Al Tex. $50; 81 Tex. ALL
Reversed and remanded.-Stayton, j.
Il. and P. railroad company VS.. Mary
A, Durrett; appeal from Dallas.-A hus-
band cannot convey alone to a railroad
| company the right of way over land
which is the separate estate of the wife,
| the latter's objections being expressed
and known to the officers OF the company,
and with the right of the company to use
the wood, timber and water. Such privil-
| eyes as an interest in land operate as a
| perpetual easement, and can be only Gre
| ated by deed or grant. And when valid,
| are not revOcable. Therefore a convey
ance as the above must be sa required
by statute, the wife joining. 1863 r. s.;
I Ohio, II The right proposed TO be con-
! veyed Is something more than a legal
| easement, and assimilates the term
known as pr0pita Pren1re. The railroad
| is liable for the inconvenience of crossing
Its track from one part OF tract of land
to another; and the damages can be given
in under the general allegation, without
a special plea. Affirmed.-Stayton,J j.
Nancy Carter VS.. Z. Wheeler ct al; ap-
peal from Denton county.-W here an in
tention, coupled with a removal, is
clearly evidenced, an abandonment
of the homestead by the wife,
though no other homestead is acquired,
is sufficiently established. The property
sued Tor was the homestead of appellant
and her husband IN 1859. and shortly az
| ter removal, In 1869, the latter sold the
same without his wife joining in, and the
purchaser was particularly Informed by
the wife that she did not claim it as her
homestead. They lived near the prop
erty twenty-five years and appellant
failed on the stand to explain why the
claim was so long delayed, and did not
state the existence of continuing in
tention to return to it as her homestead.
Held: Voluntary abandonment. At
firmed.-Stayton, j.
A. Duess vs.. Wenzel Friedrich; appeal
from Bexar.-The stenOgrapher's report
gave in full every question and answer,
and even counsels remarks, comprising
seventy pages when the simple facts
could have been stated in one-tenth of
the space. The rule, from early decis-
IONS down, only requires the testimony
of witnesses when there Is reasonable
doubt of the sufficiency of the evidence
to establish a fact. Tue statute re-
garding the employment of a
stenographer does not authorize
the incorporation of testimony so taken
down with the statement of facts, the
district court should not allow the adop-
ton of the stenographer's report into the
statement of facts, and this court will
discourage the same by the use OF proper
means. When the question Is one of
actual damages, irrelevant testimony
calculated to excite the sympathy of the
jury should be carefully excluded. Re-
yersed and remanded.-Gould, G. j.