The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-16


s-sryics January s, 1875. May IL, 1875
- continued by consent; September %,
- eause continued upon an agreement
admit TO arbitration the matter in con.
..,,srsy, which agreement was signed by
r;so as plaintiff and Adams as defendant.
I.onary IL, 1876, defendant filed plea to
.S,mrisdiction, because not living in the
ansty when suit was brought. Held, APP
.nsshad been duly served with process,
FIwe think that his consent to general
nsfnuance, aud expressly his agreement
~srbilratiOn, was a submission to the
S"I.diction ofthe court. When the parties
iassuit consent to continuance they by
.Gst act agree TO try the cause before that
s, but not at that time. Reversed and
sSmanded. Delaney, C. Adopted by
snpreme court.
"a county. fla suit is brought in which
!nhnasyecutrix, as such, becomes party,
vi the suit so brought was so latallydefect-
e. as 10 parties that no cause of action we
.hsrein presented, it would certainly follow
1st the former judgment rendered against
these plaintiffs iD'the same capacity would
n no way affect the right of the executrix
10 maintain suit for the land. Such a
;vdcment would not if that doctrine was
itrue be res adjudcata as to the eXecutrix.
nor would she be cstopped thereby. In the
ab,ence of contrary proof the property sued
Sr must be considered us community,
whieh the wife was entitled to one-half,
subject 10 payment of community debts,
psyersed and remanded. Watts, c.
Adopted by supreme court.
WE. Edmondson VS.. james Common and
vile. error from Dallas county. Under the
ss OF February II, 1860, entitled, "To
neyent judgments from becoming dor
mapt ana to create and preserve payment
liens, judgment rendered on the 23d OF
February, 1860, did not operate as a lien
yithout registration. Affirmed. Delaney
.. Adopted by supreme court.
Bladder ct al. VS.. Jose ct al; from Lamar
0untv. II does not rest upon the execu-
live creditor to establish that the husband
Sle the interest of the community in the
land in satisfaction of his debt, and the
husband, to the prejudice of u creditor,
could not have given the community money
which went to pay for the land to his wife.
As no lien attached to the land until the
levy of the execution, the property then be-
ipg registered as her separate property, he
would not have been precluded from show
ing that her husband gave to her the COM
munity money, If such was the fact, and
that at the time of such gift the husband
had lett in his hands ample property sub.
iect to execution 10 pay all his debts. AT
hrmed Stayton, a. j.
Thurber & Co. VS.. James Connor; from
Tarrant county. A term of years has such
an estate in lands as would sustain the
common law action of ejectment
and, in fact, the fictitious cause OF
action which was the foundation
Of that proceeding was substantially what
the present one is in reality. Under oui
statute of iorcible entry and detainer the
right of,possession is the only matter in
issue, and the plaintiff cannot recover rents
even which was one of the grounds in this
ease but which under our statutes can be
recovered in trespass to true title. Plaintiff
sued for possession and rents, and the dis
tict court, therefore, had jurisdiction. Re
yersed and remanded. Bonner, a. j.
Dryer vs.. Continental Insurance com
pany; from Washington county. Dwyel
policy assigned to him. Appellee
on the part of appellant. TIL,
court charged the jury that the burden o
proof was upon appellee, to show the exist
ence and contents of the policy; the vain,
OF the goods lost that the loss was not tn,
fault of the insured, nor the result of dis
honesty on his part, or the part of tn
assignee or agency, Held, the charge, a
given, was an instruction, in effect, for tn
Jury 10 find for the defense, unless the evi
dence showed no intentional burning Of
the part of the insurer, his assignee o
agency, which efiectually instructed pre-
sumption which the law, as matter Of fact
does not inualge. Reversed and remanded
Stayton, a. j.
Brooke VS.. Clarke; from Grayson county
Clarke, by next friend, sued Brooke 70
damage, through malpractice in delivery q
birth. Brooke was an accoucheur, anC
by reason of unskillful practice, IL
lured plaintiffs generative organs fC
ilfe,, Plaintiff recovered damages. Motto
TO abate suit because of death of appellsn
overruled Appeal dismissed becaus
SUIT was brought by next friend and not b
guardian, Rehearing granted. Held, tn
injuries inflicted being such as will pre-
que mental and physical pain throughor
MS entire life, the court cannot hold til
amount awarded ($5,500) excessive 1
actual damages. An objection to a chars
on exemplary. damages submitted to IL
Jury IS lntenable when first objected to
this court. The evidence in the case cal
ing Tor proper charge or exemplary dan
ages because of gross negligence, did n,
sufficiently show such evidence negativir
indifference on fhe part OF defendant
made it improper for the court to chars
on the subject. Affirmed. Gould, c. j.
John Brooke VS.. Henry n. Clarke; b
next friend Justice Bonner's dissentir
opinion. After review and discussion
many leading cases the learned judge sun
up his US follows: From these and 9TH
authorities it is believed that the true ru
on this subject, and which is supported /
sound principle, is that exemplary damag
should be recovered in those cases only
which the act complained of was so car
lessly performed, as to show in fact or |
nrohg presumption, a reasonable knowledl
u the danger accompanying it, and rec
Tess indifference as to the probable cons
quences which might naturally result al
not IN those cases in which
mistake or misbap may uni
tentionally, through carelessness,
may be, have happened. Although the q
Tor which exemplary damages may be I
covered, in such cases is usually denomi
ated gross negligence, 1t is not so much d
negative act of omission, as one which pa
taxes more of positive act of commissio
which goes beyond the line Of mere neg
sehce and becomes an affirmative act, do
either Intentionally, in fact, or under SUI
circumstances as that an intent to inju
might reasonably be presumed, by wifi
noecomes criminal or quasi criminal In
nature. The testimony in this case sho
.nat defendant was skillful In his prof