The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-10-26
mn APPELLATE oonns,
synopsis of Opiniona ~ the supreme Court
Tyler Term, 1885,

n nlofhOH county MVllVn W hllNW w
Judgment Is not tie proper way Of present
ng the question ns TO whether q suit eau
be maintained by an heir without showing
hat there was no administration and none
necessary upon the estate Of the ancestor.
A suit Of this kind Is malntanable by the
heir; (23 Texas, $50. The same reasons
which require an heir suing to recover
debt due his ancestor, or TO recover personal
TO negative the existence and
the necessity of an administration, do not
apply in suit to cancel consequence OF
real estate by that ancestor, or to vacatc
his unauthorized will. Whether convey
ance by the minors without consideration
is void or not, it is voidable by the heir.
The right of such avoidance can be eXer-
cised by privies In blood OF the minor.
The statute of wills cannot BIO evaded by
giving the will the form OF q deed to take
effect on the death of the party; "a Texas,
426; 81 Texas, ~. Notwithstanding the
death of the ward either the county court
or the district court, on appeal, had au-
thority to settle the account OF the guar
dian, The court has authority to order the
estate turned over to the herr when there
is no necessity for an administration; 10
Texas, 369). The district court, whether on
appeal or as an original case to cancel the
deed has the authority to make either the
order which the cousty court might have
made, but to finally determine the question
of the validity OF the conveyance. Affirmed.
Could ].
Thomas VS.. Thomas; from Marion county.
The case, on appeal being hr ught mp 10
the supreme court, and in anticipation ol Il
dismissal thereof, the appGIlant oaunOt
abandon such and sue out writ oil error
returnabe to u subsequent term OF the
court merely for delay; (52 Texas 51D.
Here last are returnable to the same term,
IL is evident, therefore, that the writ OF err
ror was not sued out FOR delay, and herein
the counsel ad!aiis the defects in the appeal
bond, and desires TO prosecute the wrlt OF
error only, we. therefore, consider the writ
of error also. The citation in error fails to
state the date Of the filing of the petition,
and that the writ of error and supersedeas
have been granted on motion, therefore 1t
must be dismissed for not complying
strictly with the statute, besides, 1t being
necessary to appear that the defendant was
served With IL copy of the citation, which II
does not 80 appear. Appeal dismissed.
Bonner, j.
for dismissal Of the appeal in this case is
that the attorney of record and only one
other party are sureties on the appeal bond
The said attorney of record, not having OBJ.
tanned leave of the court to so appear, and
that it is contrary TO rule so, district courts
Held, the cause being returnable to former
term, this motion to dismiss comes too late:
Besides, the above being the only ground
for dismissal, it would not be entertained
merely because the attorney of record APP
pears as surety upon the appeal bond 81
his client, though the attorney lays himself
liable to be punished by the district court
for an infraction of their rules. Motion
overruled. Gould, C. ].
Cleland & Smart VS.. Texas d. st. Louis
railway company; error from Titus county.
The cause comes up upon motion TO as
miss the appeal for among other GROUNDS,
the following: 1.-The transcript shows on
its face that it is incomplete, and does moi
contain the proceedings had in the courts
below. Held, it appears that the suit origi-
mated in the JUSTICES court, but nowhere
does it appear what action was taken
therein, nos the right nor how the district
court obtained jurisdiction, which is requl-
tanned and appel dismissed. Gould, C. j.
international d Great Northern Railway
Company ct al. VS.. Kindred from, Ander-
son county. Appellee sues the lnterna-
tional d Great Northern railway and the
Missouri Pacific, its lessees, for damages tor
killing her son. Neglect of appellants is al
eyed by reason of their not keeping Their
trains in good condition. Deceased was. q
conductor on the train by which be. was IN
stantly killed. Appellants demurIed to
the petition, plead general denial and
special plea that deceased being conductor
upon the train causing bis death, it was his
duty TO know that the train was in good re-
pair, and he could so have known by the
exercise of ordinary diligence. Verdict
and judgment for 81 ,T99
/. Appellee alleged and proved that her
son was instantly killed by the injury re-
ceived, whereupon appellants asked the
court to instruct the jury that ii the son
was instantly killed AS 10 action accrued
to him, none accrued or survived TO The
mother, Held, in Massachusetts,, where the
deceased is killed Instantly with the wound
ing, no action lies, as none accrued to the
deceased; % Cush; lOS).
In Connecticut, under q similar statute
the contrary is held; go Connecticut, lSl
Articles 1890, 1900; 4, Revised Statutes are
referred 10 and Article ~, Section rs Con-
necticut Of this state, and 1T is held,
whether these provisions of the law would
give an action to the mother for exemplary
damages where instant death resulted need
not be considered, las the courts charge con-
fined the Jury to actual damages. Whether
an action accrued TO the deceased or not is
10 giving damages to certain
benefciaries for damages for the loss re-
sulting to them from the dSath oil the de-
ceased.
9. This assignment presents the question,
was it error to read to the jury this part OF
plaintiffs deposition? Witness had no
means Of support except his own labor and
the labor Of her son no TO the date OF his
death" Held the evidence would have
been inadmissible in a case OF ordinary
damages by the party injured, But here
such testimony was proper 10 show reason
able expectation Of pecuniary aid by the
mother, but not for the purpose of increas-
ing damages, Citing many authorities).
4. 1t is not necessary :. to
decide whether the indlgentt
circumstances of the mother should
or not be shown upon proof of pecuniary
advantage expected from her adult son.
3. An assignment OF error not supported
by an appropriate proposition will not be
considered.
i Interroeatories propounded TO one
Mckay. one Macke answered thereto.
Plaintiffs propounded others 70 Macke, IN
terrogatories In both instances the same,
but cross interrogatories in the latter case
different. Their admission objected to.
Held, there being no question as TO the
identity Of the party, nor does IL appear
that the party signing Macke is not idem
sonans with Mckay, The court, therefore,
did not err.
The objection TO the reading Of the second
,iepOsition because TIE first mad been read,
was an admission Of the validity thereof
5. The evidence OF the witness 70 Mckay
&c 70 statements made by the successor OF
Kindred a. TO the unfit condition 81 the
train and that Il had been sent 70 Houston
some time before for repairs, being an
sUered Of bis own knowledge Afterwards,
was admissible ~ res gesife. but II can
not be perceived that Il preludiced the
case.
3. Plaintiff was entitled tOdamages equal
10 the pccuniary aid which she had a rea-
sonable exgectati6r II receiving during BE
Life. The reasonable expectation OF the
mothers life was the period during which
she could have had reasonable eIpecta-
lion Of receiving perunilry benefit from her
an tad be- lived. L ndfr The evidence The
damaEes Do nOt aTq,eer excessive telling
authsri.iasl Affirmed. otayton.
F~s~~-~ffr.ra1 A f.renf Northern IaIIrnaI