The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-11-16

pealf. 1fiff Tefm, 1888
sinnohluei etN ", Nahlesandcf ffom
B,sie county. telten NJ administration /
from count li smother state ~ NOT gIvo q /
right by virtue Of such TO party TO sue IN
this state upon claim dne Tho state IN |
less the title Is directly vested into The all
mlnlstration Ms when made payable 10 he
notwithstanding party, or when tile luds.
ment has been taken ir his name. Where
d transcript of judgment In another
cour, Is made the basis OF a recovery G1d
such transcript shows that the Judgment
therein rendered was 30 done without legal
notice or citation, the Judgment being yold
cannot be made valid basis fora recovery,
Reversed and Temanded, Wilson, J. sac,
Parks ct al. VS.. Billiard ct al; from Ellis
county. Where a party brings an action
for damages on two separate counts Tor Two
separate breaches of contract and only re-
covers on one, and wherever on That count
the Judgment is incorrect because the CON
tract alleged in the petition differed from
the one proven, yet, if the losing party on
that count comes and requests the court 10
affirm the cause if reversal cannot be had
on the count upon which judgment was
rendered. and an aiiirmance on one count
and q reversal on another cannot be had,
the judgment in toto will be affirmed.
Affirmed. Hurt, ].
Craddock VS.. the State; from Dallas
county. Upon convictions for violating the
Sunday law, Craddock appealed ana en-
tered into recognizance. The papers IN the
case being destroyed, the county attorney,
without notice to Craddock, substituted the
papers with the exception of the recognlz-
ance, and carried the cases up where the
appeal was dismissed for want of recog-
nizance in the record. Mandate and execu-
ton was issued, which was the first notice
Craddock had of the action of she court
He seeks supersedeas, asking the court to
set aside the judgment rendered, with
ssued, and TO send the case back
and place it upon the same foot
! ing as it was before substitution of the lost
papers. Upon the above facts being shown
to the court, the superedeas is granted, the
mandate and execution withdrawn and the
Injunction pcrpctuated. BY the court.
Blum ct al. VS.. Ferguson from Morris
county. A Judgment in favor of defend
| ant for an excess over the plalntllfs de-
mand of payment pleaded by defendant
when he does not claim such relief by his
pleadings is not authorized by law. A
valid Judgment is one authorized by aRl
conforming to the pleadings of the parties.
and must be within the prayer.for relief and
that sought; (l3 Texas, 1926; ~ Texas, 25I)
Reversed and remanded: Wilson, J.
| George VS.. the State; from Delta county.
An information charging aggravated, as
sault as follows is sufficient: u That
Lee George, "a male person, with force and
arms, did commit an aggravated assault IN
and upon the person of " female,
by then and there violently, forcibly and
indecently taking hold of and handling
with indecent familiarity the said -
with his hands" etc. Affirmed. White, p. ].
| Tavac g. papifin railway cOmOpnV VS..
| Hurless; from Bowie county. III con-
ductor on a railroad by his negligence or
diSobedience of instructions in the course
of his employment causes the railroad COM
pany to suffer direct loss by such negligence
or disobedience of orders the company le-
gally claim an offset against any claim for
wages that the conductor may have, such
amount as the loss or damages amounts to,
as caused by plaintiffs neglect or disobedl-
ence of duty. A contract of service is mu-
tual. The mployer has claim against
the employed for his neglect of duty. Re-
yersed ana remanded. Wilson, j.
McMahan VS.. the State; from Rains
county. 1t is discretionary with the court
whether witness be put under the rule or
not. In the exercise of such discretion, uu-
less clear case of abuse is shown, the
courts action will not be disturbed. 1t
must be shown to have prejudiced some
right of the defendant. The charge OF the
csurt being the law of the case the court
did not err in refusing to give certain special
instructions asked by defendant, the same
contravening the law as correctly given in
the charge of the court. Affirmed. Hurt, j.
Ish VS.. the State; from Navarro county.
Although the court erred in charging If the
horse was taken from the possession of Jen-
4 nings Jones owning the horse and living
with Jennings), yet the charge, though i'm
proper, is not shown to have prejudiced any
right of the defendant, and that of itself
presents no good ground forreversal. The
proof of name is amply sufficient, and no
error is apparent. Affirmed. Wilson, j.
Crittenden ct al. VS.. Robinson ct al; from
Wise county. A levy was made upon the
property alleged to belong to appellants by
purchase from Eoth, who purchased from
PoindeXter. The conyeyances were attacked
as fraudulent. Held, upon the. affidavit
and writ of attachment being shown the
burden shifted. The charge presents no
material error, the evidence supports the
verdict, other errors assigned are not lena
BILE, and the only error apparent, that OF tax.
ingscosts against sureties, not being assigned
and not being fundamental error cannot
be considered. Affirmed. White, p. j,
Friday VS.. the State; from Angeliua
county Bills of exceptions not signed by
the Judge cannot be considered by us and
should not be contained in the record
There being no assignment Of errors, funda
mental errors in the charge can alone be
considered. 1t is only when the evidence
is purely circum stantlal that the rule ap
plies; 1851 App, 452 and 653). The charge, Il
! erroneous as TO implied malice, does not
cause a reversal where the conviction is fol
mansaughter. Affirmed. White, p. j.
Crowder VS.. the State; from Hopkins
county. Crowder was convicted Of stealing
a horse in Hopkins county. Upon being
unprecedented with the horse in Delta county
and being told that they were looking fol
such horse ng nc had, lie hod, leaving thu
horse behind him, Held, this in connec
ton with other eliminating facts was con
slusiye of bis guilt, As to the Indictment
il was a good one; the charge of the cour
presented the law Of the case; there is ne
error apparent, and the judgment il
affirmed. Hurt, ].
Osborn d Co. VS.. JefTries ct al; from Dial
las county. Appellants sned Better a
Co.. upon a written endorsement and guar
antoe Of note given by Jelfiies for ma
chinery sold him. The agreement Was tina
lappe!lees we're to have the coliecti m Of thi
notes. When the rotes became due th'
maker was solvent and could have paid
them, but they were not presented, no
collection sought. Shortly after maturity
the maker % the note became insoiyent
Osborn & Co. now seek 10 hold the guaran
tors liable. The above facts do not show
! sufficient diligence in the appellants e
bind the appellees upon this guaranty
There was no error in the court below 9
holding. The judgment must be affirmed
HurtJ.
Texas & Pacific railway company vs.
Morrow; from GraysOn county. Suit wa
brought in the court below against appel
: ants' road for medical services rendered al
, employe Of said road while in the dischargl
of his dnty. The services were rendered a
the instance OF Burnett, the freight agent
I appellants road. The only question IL a
10 the authority OF Burnett TO bind tn
! company. Il was proven and the evidence
was admissible that Barnett on severn
previous occasions had employed pbysi
clans 10 perform similar services and tina
their bill hai been paid by the company
Held. this evidence was sufficient. II not q
show express authority IN Burnett 20 mas
the contract, Il showed an implied author