The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-02-02

otherwise as sci ont IN Tie petition aud
policy. This evidence was excluded
un The gfodnd Of Variance With the
description given In the policy and the
petition. Held, error, that the evil
tlcnce wns rendered 10 establish the iden-
tity Of insured property, and not toenlarge
or abridge the contract, and should have
been Admitted. Where II Is evident from
all the facts attending II case, that the
ruling Of the court In the progress of the
trial. party was cut a., rom trying his
cause on the merits or deprived OF any
other right, though in striciness the ruling
may have been correct, yet If IL Is made TO
appear that the default ofthe party was not
inexcusablc, and he presents u prima iacie
case Of merits, he ought to be allowed o
new trial. Reversed and remanded.
Walker, C.
Wilson VS.. Grflin;from Rusk County. The
writ of certiorar is granted as maCter OF
right, but lies within The discretion Of the
court. Application therefor should show
that appellant has rights, or valid defence
of which he hos been deprived by the erro-
neous action O.. the inferior court, or that
without fault of his, or want Of diligence he
defence % Tex, 1913. When defendant
fails without good cause shown to make his
defence before Justice, it has been held that
he is not entitled to relief through the writ
of certiorari. II Tex, GIT. The plaintiff
is entitled to no better protection, but is
required to appear on the day citation is
relurnable, or any day to which the court
shall be continued, to prosecute his suit.
The petition showing total failure to eX-
ercise deinquence in obtaining service on
two of the defendants makers of the
note, and an absolute neglect Of duty on
part of plaintiff in failing to appear before
the Justices Court to prosecute his claim,
the action OF the County Court in dismiss
ing the writ of certiorari was not error In
a technical view, though The julgme mt of
the Justices Court in this case asin,elGed
as fnality to the litigation, it was
not final judgment, and in
a strict technical view it ought
be held that certiorari will not lie until az
ter final judgment. IL Tex. 81. But
whether final or introductory, the case
could not be prosecuted against two defend
ants not served and whom, consequently,
it could not affect. Affirmed. Walker, C.
Lynch e. Lewis VS.. NJ arewitz Bros &
Strauss from Hopkins county. An atiida-
Wit for garnishment should stale the
amount claimed to be due, for which the
garnshment is invoked. And it should,
also, state that the afliant 'does believe"
that The garnishees We're indebted to the
debtor. That aifiant "has reason to be-
lieve,n is not sufficient Nor can reference
order to ascertain and determine
the amount of the Indebtedness claimed to
be due, but the amount should be shown
by the indebtedness claimed to be due by
the atfidavits made to obtain the writ. The
affidavit must also state the fact upon which
the statute authorizes the writ to issue; and
when this is not done, upon proper motion
the affidavit will be quashed and the pro-
ceedings dismissed. Reversed and dis
missed Watts, C.
Holmes VS.. Johns; from Hays county.
Prior to the law of March 20, 1885, all sales
made by colonists of their headlights before
the lapse of six years from the GATE of the
title, were void and after the law of March
IS, 1854, up to the Constitution of the r.
public, sales, and agreements for the sale of
lands by settlers before the final titles is
sued by them, were utilities. The sale of
the land in this case from S. d S. to G.
was void under the decisions in IS Tex,
40, and Williams vs.. Chandler, % Tex, for
reasons above set out. Where relief has
been given III such cases it has been be-
cause of long possession, long acquieScence
in the sale by the parties or heirs, valuable
improvements, ETC., and not because of pur-
chase or payment Plaintiffs here allege no
facts upon which to base claim of equitable
never been in possession, show
no proof of the ratification of the sale by
s.. and their deeds were not recorded until
aitera lifetime had elapsed and the land had
passed by transfer to defendants. The re-
fusal to return the purchase money cannot
validate sale prohibited by law. The rule
that where vendor sells without title, if
title is afterwards acquired it insures to the
purchaser, does moi apply to sales prohip
tied by law. Reversed and remanded'
Quinan, C.
Cassidy VS.. Smith, administrator; from
Travis county: The principle upon which
the doctrine of res adjudicata is founded, is
that there has been a final and conclusive
adjudication and determination of the mat,
tiers involved; that the parties have had
their day in court; that the case has
reached the end of the law, and final
Judgment has been rendered. With us, by
statutory enactment, but one final judy
ment can be rendere. in any CASE A judg-
ment is final only when it finally disposes
of the whole of the matter in controversy as
to all of the parties, and a Judgment
which leaves, anything to be
done by the court before the
rights of one of the par.ies are determined,
and which does not end the litigation, is
only introductory. Whatever orders, du-
ress, .etc., may be made in either the trial or
Supreme Court are interlocutary until the
one final and detinitive judgment is rem
dred The rule of stare decisis does not
apply to a ruling of the court when that
principles of law, and in which such ruling
has not become a rule OF property. An in
investment that authorizes the creditor 20
sell lots encumbered, only upon default of
the debtor, is a mortgage with power OF
sale, and is not, because placed in the name
of another as security for debts, convey
ance for the benefit of creditors. Upon the
death OF the mertgager the mortgage must
he administered according 10 law, and
through the Probate Court, and the death of
the mortgager revokes the power of sale.
Reversed and remanded. Watts, commits
sioner. Quinan, commissioner dissents
Morris vs. Woods; from Delta county.
When 1t appears that the party asking
continuance knew that the witness had re-
moved from the State, where the suit was
pending, and made no effort TO take his
deposition, want of diligence is manifest.
and the continuance is properly refused.
When a writ of sequestration contains all
the essential matter of substance, motion
to quash because irregularity Of form is
properly overruled. Multiiariousness or
misioinder Of causes of action in the same
suit, must be left TO the discretion OF the
court trying the cause, and that discretion
will not be reviewed except where palpa-
bic abuse is manifested. Affirmed. Watts, c.
Cassidy VS.. FARMLAND, from McLennan
county. In sales Of land the superior title
remains in the vendor until the purchase
money is paid, when the conveyance is ey-
ecutory, or when a mortgage for unpaid
purchase money is given simultaneously
with the deed, or VIII. an express lien is
retained in the deed, but not when there j.
DO express lien reserved, nor where mort
gage is taken subsequent 90 the execution
of the deed nor does IL attach 10 the notes
riven for il. The holder OF the nOtcs
Is not The holder 81 the LEGAL
title. unless De is the original
vendor. his heir or representative.
nor will The superior title i0llor the asst ~
ment Of The mortgage and vest in ihe assie-
neer. 81 Tex. 2j2. See also 90 Tex. JsJ In
order % retain the superior iiile. the vendor
must nl-u remain owner Of the purchase
money notes. The vendor. rescrfinc q
may enter upon the land in de-
rrulf nf farmeuf. IN he cuu ucacrnDiv. ur