The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-26
COURT DECISIONS.
,,.opsi. of Opinions of the Commissioners
of Appeals-Austin Term, 1881.

rails county. A judgment cannot be at
led on collateral proceeding on the
-,ppd that there was on fact no service
ere II reeites either service on or appear
'n.. w the defendant, but in appeal or
- of /, rror, the record must show either
.,ryice uron or appearance by the defend
=, NJ Texas, 649 45 Texas, 57l) Reversed
' end remaudeG. Watts, c.
nsvis6 Bro, VS.. Saldee ct al; from Falls
,ounty. Where the separation of husband
and wife is permanent the circumstances of
,uch separation are INN, material ON a ques-
lion Of her power TO bind Ter separate prop
srtv BY contract. Whether the husband
shsndon the wife or vice versa is of no con.
se0uence. If the separation is final she has
/ hl power over her separate property. BY
an unnecessary abandonment OF her hus.
hand the wife might forfeit her homestead
and other such rights, but she would not
lose her right to or interest in her separate
property. Reversed and remanded. Watts, c,
Gargent VS.. Collins 4 Campbell: from
Johnson county. The affidavit and bond in
attachment proceedings cannot be amended,
Exceptions must be taken to the overruling
continuance or motion for change OF
venue, otherwise this court will not revise
the ruling. After the attachment was
Ouashed the property is no longer in the
hands of the law, and in the absence of an
order from the court for such purpose the
officer would not be justified in retaining
possession ofthe property. Some statutory
provision authorizing the party in such
case after excepting to the ruling quashing
the process by giving bond, to retain the
property in custodia legis until the final
siindication is suggested to the legislature
Affirmed. Watts, c.
Fleming ct al. VS.. Jackson; from McLen-
nan county. a failure to call the attention
ofthe court to and obtain ruling on a mo-
ton to Quash the bill of sequestration and
bond will be considered waived. Is Texas,
$685. 81 Texas, 434) After Judgment rem.
dered the sureties on the .replevin bond
filed motion supported by affidavit to re-
form the Judgment so as to release them
for the value of the property which had
died. Motion overruled. Held, this mo-
ton is suggested to the discretion of the
Judge and unless apparent abuse thereof is
shown it will not be disturbed. The bur
den OF proof is upon the party claiming to
prove that the property was purchased with
bis means. Reversed and remanded.
Watts, C,
W. Hutchins 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 appeal,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 Grayson
county. a Judgment by default admits
every material allegation to the petition ex-
cept the amount of damages. A judgment
by default in case of tresspass fixes the
plaintiffs right forever, and 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
tif's right to the land. and she could not
waive the damages. So far as the title is
concerned jury could have been OF no SER
vice, for there was nothing to be established
by a verdict, and there was no need of evil
dence, 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 sci.
Ter showed him map and the contem-
plated location of the railroad, and alleged
the falSeness Of the map, but fails to state
wherein it is false This is no direct aver
ment that any wrong was done by plaintiff
or his agents or any fraudulent misrepre-
sensations made, hence it was not error to
sustain exceptions to and strike out the
answer. Affirmed. Delaney, C.
Parsons VS.. Smith, ct al, from Tarrant
county, Judgment by default on citation
not served full five days before the call o.
the case is voidable only and not absolutely
void Although the return on the service
is irregular, yet judgment upon it would
only have been erroneous and subject tC
reversal on appeal or writ of error. The re-
turn recited that x Y had been served with
\ X, true copy of the writ
with plaintiffs accompanying petition will
this writ certified to by the clerk of the
court. This can only be considered cler
lcal mistake in stating that the writ wa
certified by the clerk, instead of saying the
copy of the petition was certified by tn,
clerk. Affirmed. Watts, C.
Stevens ct al VS.. Nelson ct al; from Hill
county. Although transfer may be mad,
to defraud creditors, still when the prop
erty without consideration goes back int,
the possession of the widow, as the repre-
sentative of the community estate of her
self and husband, making the fraudulen
transfer, their rights attach to it the sam,
as If there had been no such transfer. A
between the party making such transfe
and his assignee and creditors the effect O
the adjudication in bankruptcy was to pas
the right OF property to the assignee and /
might have been followed into the hands o
the third parties and subjected to the pay
ment of the debts Of the party making tn
transfer. Upon the dissolution Of marriage
by death one-half of the community prop
erty shall go to the survivor and the othe
half 10 the children OF the deceased. Tn
question Of community or separate prop
erty is one of fact, prma iacie, all propert,
owned by the husband and wife at the dis
solution of their marriage is their commu
nifty estate. The burden of proof is upoi
the party asserting the contrary to estab
fish to the satisfaction of the Jury. Re
versed and remanded. Watts, C.
Cooke vs.. Washington ct al; from Collil
county. The object Of an assignment Q
error is to call the attention of the cour
to the error complained of and b
give notice to the opposite part
as TO what particular error or errors the ap
pellant relies upon. Where the assign
ment states that the court erred In -four
teen charges given to the jury, no particu
lar iniringements of the law being pointe,
out, fanny, the error will be considered q
waived When there is nothing in the r,
cord to the contrary the presumption is |
favor Of the court that il charged the la
correctly. Affirmed. Watts, C.
Freeman VS.. Brundage; from Dalg
county. When one offers In evidence tn
Judgment and execution as well us III
rat h. ~ a