The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-12
COURT DECISIONS.
synopsis Of Opinions OF the Supreme Court,
Austin, Term, 1882

0ynopsis OF Opinions of the supreme Court,
Austin, Term 1852.
Aaron Wolf VS.. Emma ii. Mcmahon;
appeal from Williamson county. Where
the issue in the court below was the gen.
uneness of deed from the original grantee
to the party under whom the appellant de-
raigned title, the deed being attacked
for forgery by the affidavit of the appellee,
and the dispositions taken by the appellant
were directed towards this issue, and Incl.
dentally the facts of the grantor in the al
legged forged deed, being at the date
OF its execution resident of the
city of Houston, and living there
at the time of its execution, defendant
had no notice from any irregularities filed
by the plaintiff that il would be relied
upon to establish the forgery of the deed;
that at the time of the purported execution
OF the deed the grantor therein was several
hundred miles distant from the place of its
execution. Defendant had, by credible
witnesses, whose dispositions were taken
and proved by them with great detail, the
facts which, If true established the genuine
ness of the deed and of course the subor-
dinate fact, though no direct evidence on
that point, that the grantor was present in
CutiOn of the deed. On the trial the plain
tiff introduced several witnesses who tes'
tifv ~ positively to facts which, If true,
establishes that the grantor at tho
date of the execution of the deed, was
svJral hundred m les away from the place
OF US execution, Verdict for plaintiff. Held,
that after discovered evidence showing that
the grant0r at the time of the execution of
the deed was in the city of Houston, the
place of its execution, was not under the
facts, cumulative evidence, that plaintiff
might well claim surprise, and that he had
exhibited all the diligence required of him
under the facts of the case, Evidence is
not cumulative merely because former evil
dence may have indirectly tended to
establish the same facts. Ii so, after any
evidence tending to show the execution of
the deed and of the whereabouts of the
grantor at its sale, would have been cum
ulative because whatever tended
to show the genuineness Of the deed, tend
ed also to show that the grantor was in
Houston at the date of its execution. The
reason of the rule prohibiting II new trial
for the purpose OF admitting cumulative
testimony does not apply where the party
has had no lair opportunity To procure and
adduce evidence ON an issue raised by his
adversary for the first time during the trial
by the introduction of evidence which could
not be anticipated. Reversed and remand
cd. Gould, G. J.
A. II. Roundlree vs. George Gllroy; from
Llano co nty. The fact that one who is
appointed special judge is a member of the
legislature does not disquality him, nor is II
person holding another civil office
Of emolument disqualified thereby
The judge having appointed jury
commissioners for certain time
and that time having expired before the
adjournment of court it would have been
more proper to have reconyened the same
commissioners and then to have selected
the jury, but if the judge appointed other
commissioners ut the expiration OF their
appointment and they selected jurors, it is
moi such an irregulariiy as would justify a
reversal on that ground. Evidence OF prior
or contemporaneous verbal agreements to
contradict, vary or add to written con
tract, is not allowed (2S Texas, 553)
Affirmed Stayton, a.