The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-11

remedy NJ distress war AIT against Tie
property NJ Tie tenant IN The mode pointed
tnt by that statute. N did not exteud y
preference lien IN favor of Tie landlord ek.
crpt ~ to such pf0pedy ~ u FptclloaOy
designated Nv tile first section Qi that stat
ute. Reversed and remanded Wllker, y. 6,
John q, SedgwiCk vs. J, X Patterson ct
nj appeal from McLcnan county 10 fix
% lien under the statute art 7ll2, Pns'
chefs Digcstl, the provisions Of the statute
must be complied with III every essential
particular. Material men," when fully
comply ing with the statute, ale entitled
fully to the benefits of the act. The lien Is
not created by the contract OF the parties,
but when II exists at all, is the creation Of
the statute, and exists upon the con,
dltions prescribed for its formation and
its continuation. The requisites of the
statutes are necessarily descriptive 81 the
| lien, and If omitted in the pleadings, should
subject them to demurrer. When the SUIT
| was brought the district court had Jurisdlc'
| ton of amounts in controversy over 500.
| The jurisdiction OF that court was eX'
tended to $500 during the tendency of this
| suit, and the court then dismissed the
cause, because the amount in controversy
was less than $500. Held, the court erred
in sustaining the demurrer and dismlssing
the suit. Reversed and remanded. Walk
er, p. C.
Lizzie Caupbell VS.. Houston & Texas
Central railroAd from ELLIS county Inc
supreme court at its last session in Ty Ter
determined the merits of this case on the
appellants transcript of the record. (TeXas
Law Journal, vol. 5, No. 20, p. Bill This
| transcript of the record was filed May o.
1876, at the instance OF the appellees' coun-
sci. The appellant is not shown 10 be IN
default in duly filing the record OF TINS
case, and no reason TO the contrary appear
| lao
costs that have been accrued, the appeal IS
dismissed and the costs fall upon the ap-
pellee. r. S. Walker, p C.
The G., H. & S. A. r. r. Co. VS.. Phanaty
Cartwright; from Caldwell county. ~ part
| of the casue of action of this suit is Tor dam
ages claimed to have arisen from the mode
| of performance of contract 10 denver ROCK
at and upon certain land; and the supposed
trespasses were incidental to the acts OF
narties under a contract, which took for
granted unquestionable title, possession
and authority on part of plaintiff, ana
| that the same was fully recognized
| by the defendants. The supreme court has
construed the eleventh clause OF article
1923, P. d., which says excepting from me
general rule requiring suits 10 pc DrouEht
| in the county of the domlcile) where the
the recovery of land or damages thereto"
is the object of the suit, in such cases suit
must be instituted where the land or part
thereof il situated" to not include suits for
specitic performance OF eXecutory con racls
for the sale of lands, nor for the recession OF
contracts relating to land, the operation Oh
that provision being confined thereby 70
| suits not merely relating to an interest IN
| land, but where its recovery is sought
in the suit. DC Tex, .327 % Tex, 5U4).
! And the plaintiff in this case, only sues
| for the the value of the use and occupation
of the land in question, enjoyed by the de-
PENDANTS with her consent and consistently
with both her title and possession thus
negatiying the idea Of controversy be
tween any adverse rights or claim to the
Lille to the land or right to its possession,
As actions contemplated by the statute:
The injuries complained OF were mace OF
the premises during occupation ,as efoio
said, md were alleged as additional causes
for coupensation. The principal ground
OF th7 aintii's action was lor the fecoVr
,.v of al amount due on account OF con-
t,.et for the sale and delivery of the
rock upon the land. And whether the
court had jurisdiction, or not, OF that
branch of the case relating to the claim Tor
DAMAGE. does not affect the jurisdictional
question concerning the plaintiff action
upon her account If the former portlon
of the case was within the jurisdiction,
there should have been an exception Tor
mlsjoinder OF actions The policy OF hxlng
the county where the land is situated us
the venue tor suits for the recovery OF land
and damages thereto, is based on puohc
expediency respecting notice 10 third per
son, at TO the tendency OF suCh sults'
Vide, Hearst vs. Kirkendall, clted supea'
The court, however, did not decisiyely
adopt that view. Affirmed. Walker, p. c.
Houston s. Texas Central railroad com
pany VS.. A. j. Barrager; from Travis
county. A brakeman sues for damages Tor
injuries resulting to him as the direct con-
sequences of negligence on the part OF the
company in failing TO provide suitable APP
pliances to the cars as TO enable the plain
tiff to safely perform his allotted WORK.
fer the citation of numerous railroa1
cases and elementary authority directly ap,,
propos, the court says: ut Is the outy OF
The master TO furnish and maintain imple-
ments and machinery reasonably suitable
to perform the work which the servant Is
required to do in the diseha.ge OF ms duiy
under such omulON ment.' ~ lex. l5l
II .. n. s., 475; AZ n. H., 22j, and Hill on
torts. p. 4G5 Wnile the evidence was
somewhat conflicting, yet the jury
were sufficiently enabled u COTE
clude adversely respecting defendants
negligence and in eXoner4IlJ!-
of the plaintiff from cUntributory heSi-
,ence. and both issues were distinctly suO-
province OF the jury 10 determine ths
weight OF evidence IN case OF conflict. D
Texas, 220, 400. Tue supreme court VIII
not set aside q verdict and grant "a new trial
simply because the weight OF evidence pre-
ponderates against the verdict. IeXas, b.
But otherwise when the verdict is without,
or contrary to the evidence, or when great
preponderance exists on the other side. 8
Texas, 400; h.. 50; % Id. Sup, 20, and
30 Ib,, 224. 1t is not enough that 1t is not
clear that tine verdict is right, bnt it must
appear TO be clearly wrong 10 autnoII@e q
reversal ON that ground. Texas, 5Si, ana
on this point the court contains
a luminous and lengthy u eeieren Zee
SO Texas, 2O7,) that a railroad is not liable
as an insurer TO its employees for such inju-
ries as are alleged here, If proper precau-
ton is taken to see that such implements
are reasonably safe and sound. But 1t Ia a
question Of fact in this case, whether such
precaution had been taken or not. IL was
also held, in above case, that an injury II
traced 10 such defective supplement furnish
nished by the maker, 1t is prima facie evil
dence ofnegligence, wide Cooley on torts.
G6l, ct als.) The plaintiffs mental as well
rs physical sufferings was correctly sub
mitted 10 the jury as one OF the elements OF
his damages, as Texas, 20. There was
no error in the main charge, because
law fully, Us Tex. 1929. The several in
structions refused were objectionable in
some particular or other, as in giving un-
due prominence TO a matter that does not
sufficiently present the law OF the case, 90
Tex. 22s); and also, as in those instances
where the inttructions asked, the issue Of
negligence BY e-defendant, and Of con-
tributory negligence by the plaintiff, were
in effect Withdrawn from the jury, and
hypothetical cases determining the cases
instructed as constituting negligence COZ
clusiyely as a matter OF Law, were submit
ted in lieu of the above issues, al Tex: $50.
Ii is not the duty OF the Judge
-ther. one not and the other
b ng law, 20 give the part which
W aid have been proper, II not presented
an objection form and connection. "a