The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-11
THE pA1LAs wnrnLy nnnALn. nunsDAy.MAy y. 1889.

assignment NJ errors, Wotilu luflll thN re-
cnghlton n the record ~ sufficient ~ var.
fant revision NJ The proceedings brought
40 Dismissed. Walker, 4. ], a,..
4. i. Vance administrator VA. Phillip
ClhnbOfne appeal rom BaNf9p
county The court has repeatedly
held that any objection 20 the iOrm
In which an offset IS presented should
he disposed Of on exceptions, so that the
defendant might have the privilege 0i
amending his answer In that particular
(2l Texas, 1874 And an amended answer
presenting sucn an offset can be sufficient
to admit evidence IN support Of II. In this
case the most favorable construction Of the
evidence, under the answer, shows that the
verdict aud judgment is for an amount much
too small. Same cise before supreme court
in 1873, 60 Texas, 1851 Reversed and re.
mandcd. Watts, C.
| Charles l.. Tenncll VS.. Ira NJ. Breedlove;
appeal from Travis county. a SUIT
to set aside and vacite ,judg-
ment for George and against James
| Tennell, 1872 Identical Judgment ill.,
volved in Tennell VS.. Breedloye, (54 Texas,
5l0:) and that decision accords with former
| iud gments OF the court, (5l Texas, 3li 10
constitute direct proceeding to set aside
Judgment, all the parties at interest must
be made parties to the suit, that the court
by its decree may relieve one without detri-
I ment 70 the other. II party to the former
! suit was dead at the bringing of this SUIT,
his heirs or legal representatives. should
have been made defendants. Here neither
of the defendants appear to have been par
ties or to have had any interest in the suit
Mt the rendition Of the Judgment III lSi2.
| Judgment in 1912, James Iennell lived un-
til 1851, appellant becoming q IN 1868, and
this suit began N 1915. 1t is not alleged
that the frauds and irregularities OF which
] I,.A ,lliD
him; and if this suit to vacate,
ETC., had been against proper parties, still
| it would have come too late. az Texas,
239) Affirmed. Watts, C.
NJ. T. Tut VS.. w. 7. Thornton; appeal
| from Cooke county. The English doctrine,
! that every material alteration OF an lnstrn-
ment avoids it, not in harmony with Amer
| lean law that the alteration must be OF
such nature as that the form of the obi
CATION will be changed or the evidence con-
fused. (23 Texas, 1863. Dan. on Neg lnstru-
ments vol. ., p. 363 etc. But need not be
Applied here, where erasure OF the name OF
a surety was claimed to discharge appellant,
| the former having paid the note and the
same was transferred to him. Majority OF
commissioners conCurrlng that u payment
OF a note by surety, as between nun and
the principal does not extinguish the debt,
and the SAID principle is correct as
| held in 10 Texas, i3S, and that the same con-
ficts with Texas, 81. Affirmed. Watts, C.
w. W. Sneed VS.. c. +. Towsen ct al; APP
peal from Coryell county. The court, after
discussing the necessary points OF the facts,
concludes considering the conflicting
character of the evidence, the form and
phraseoiogy of the charge, and its marked
conclusion upon the farming point OF case,
! it appears that the jury were controlled
and very likely misled by this charge. Re
versed and remanded. Watts, c.
Jesse Thomas VS.. K. W. Porter ct al; APP
peal from Burleson county. Appellant,
with his son, taking possession OF l60 acres
as pre-emptor. bringing the remainder OF
afterwards, and staying permanent
ly, and making improvements thereon,
| held to have exhibited sufficient intention
| to make H. his home, and that sand land be-
came his from the time he took possession.
| And his failure To procure survey was at
trlbutable to an obstacle, OF illegal appro-
priation by appellee, and not to former 5
neglect. Appellants effort, though posi-
| bly, mistaken remedy, was sufficient to
protect h rights, he having filed the field
notes in the land Office within GIVE months
ailer the passage OF the 'aCt lUr the heneft
OF actual occupants of the pubic lands,
passed May o. 1873 Reversed, and judg-
ment ought TO be fenVered for court below.
W 5. Delany,-c.
Thomas 4. Pusby VS.. Mary Z. Robinson
ct al; appeal from Iarrant county. In
atterappertaininge exclusively TO an estate,
| tAe|dstrct court would not interfere Tor
/ the benefit of those interested in that es-
tate, aud for its just settlement, unless Oh
grounds of fraud or trust. In the case
here, plaintiffs have no interest m the es-
tate OF the deceased, of which defendant is
administrator, they only claiming divis-
ion as between that estate ana themselves,
of some property in which they allege JOINT
interest with deceased. When the right of
the alleged owner Is contested the probate
court is not fully adequate 10 try the tue
and il is questionable whether the district
court would not have exclusive Jurisdiction.
"a Texas, 1917 Reversed ana remanded.
A. w. Austin VS.. S. B. Allen. ct al; ap.
peal from Fannln county. In % Texas, I'll,
ii Is htld, with the curreut OF authority,
simply lhat the plaintiff cannot Sc,
l,ct mt pleasure amy number "i
signutufes. surpassed to be those Ci the de-
te daut, but wholly unconncctrd with the
case ia hand, to be com pareI by the jury
with the slsnIiu-v ~ dispute, Tor u aliu"
such would cause collateral issues. IN
pre.eat Instant the papers are connected
with the tsc, the slgLatures being ADMIT
tel - be cuuue, ANA the witnesses having
sen the dtleB1tut Wr.ie. lst Gcnl Ed., ;.
5sl, cited toy Gould, l.. inH Texas 5lo, with
witness, ia cX nniu.b ION N Chief, guessed az
a genuine signature, the court below did
not err IL a.ipAt hg tNO papers VITA only
the siguatu res visible TO be held out 10
witness upon cruss.eA4minatlOn. Atilrmsd.
Dclany, e.
NJ. J. z. sicklos ct al. VS.. J. Il. Largent; APP
peal from Coli n oduty. General laws oi 1913,
page ", section 10, did not require the
execptrix 20 institute suit for the trial OF
title TO land until the court had maue an
order directing such suit. But where no
such order is shown to have been made,
then those interested in the property onght
maintain the suit: aud the coming in Of
execulrix as such, does not constitute the
dismissal of the old, and the institution of
new suit. The property being communi.
ty, the surviving wife was proper party and
her witness could not be defeated by the
husbands will, aud as she was proper
party plaintiff, the mere subsequent max
ing OF another proper plaintiff would not
affect her right 10 maintain the suit, though
the former judgment was rendered against
her MS such. Reversed and remanded.
Watts. c.
b Bunbann ct al. vs. w. II. Huykendall.
administrator, error e. district court Of Lee
county, parties appearing and answering
60 the merits thereby waving objection 10
the service The description OF person a.
administrator is a judgment when same
When appeal taken for delay Judgment
should be affirmed with damages. Affirmed.
Watts. c.
W II. Edmondson vs. Jamec Conner and
wi r: error IrUm Dallas county. Wheiehnr
judgment rendered February ., 1900.
s,pe. ated a. a h,u, without registration,
u..ln lands itt tue same Cuunfy, notHith-
4 tnding the at Of February IA, lsGO, ITO
pr vent judgments from becoming dor
mant. etc." the whole question decided in
Compton vs.. Baker. % Texas. 3J2, and in ac-
cor aBce with that decision, thi judgment
j. aiiuned. Deiang. c.
ID L Ga1ch " John $. Johnston; appeal
fr IN Comasc5e county, Under article 49,
r ID judicial attacn uent could be issued
before the iirst day Of the term, upon The