The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-04
SYNOPSIS OF OPINIONS.
reported Expressly for the STATESMAN.
COmmlssioners OF Appeals.

| has no jurisdiction over an appeal, Wnen
the same has not been perfected by the
appellants giving bond and even should
this objection be obviated. the incongrui-
ties that the record does not show any
thing pertaining to the trial of the matter
referred to, and that there Is neither
pleading, bill of exceptions, statement
OF facts, nor assignment of errors, would
forbid the recognition OF the record as
sufficient to warrant review OF the pro-
ceedings brought up. Dismissed.-WaI-
ker, =. j.
+. j. Vance, admi nistrator, VS.. Phil
Claiborne appeal from Bastrop county.
The court has repeatedly held that any
objection to the form in which an offset
is presented should be disposed of on ex-
ceptlons, so that the defendant might
have the privilege of amending his
answer In that particular. ri Texas, 1856. ]
And an amended answer presenting such
an offset can be sufficient TO admit evil
dence In support of It. In this case the
most favorable construction Of the evil
denee, under the answer, shows that the
verdict and judgment is for an amount
much too small. Same case before su-
preme court in 1873. [39 Texas, 39S. Re-
versed and remanded.--Watts, commls-
| sioner.
Charles L. Tennell VS.. Ira NJ. Brudlove;
appeal from Travis county.--A suit
TO set aside and vacate judg-
ment for George and VS.. James
Tennell, 1912. Identical judgment in
volved In Tennell VS.. Brudlove, 81 Tex.
| $40; and that decision accords with for
mer judgments of the court. [5l Tex.
IA To constitute direct proceeding
TO set aside judgment, all the parties at
| interest must be made parties to the suit,
that the court, by its decree, may relieve
one without detriment to the other. II
party to the former suit was dead at the
/ \ 81 ~ I.s-
| representative should have been made
defendants. Here neither Of the defend
ants appear to have been parties or to
| have had any interest in the suit at the
rendition OF the judgment in 1912. After
the judgment in 1912 James Tennell
twenty-one in 1865, and the suit begun in
1875. 1t Is not alleged that the frauds
and irregularities of which he COM
plains was concealed from him.
And If this suit to vacate
etc., had been against proper parties,
still 1t would have come too late. ~
Texas. 1891. Affirmed-Watts, G.
NJ. r. Tut VS.. W. T, Thornton: APP
peal from Cooke county.-The English
doctrine, that every material alteration
of an instrument avoids it, not in har-
| mony with American law that the altera-
ton must be of such nature as that the
form OF the obligation will be changed, or
the evidence confused. % Texas, 1853;
Dan on Neg. instruments, vol. 2, p. 1863,
etc But II need not be applied here,
where an erusure of the name OF surety
was claimed to discharge appellant, the
former having paid the note, and the
same was transferred to him. A majority
of commissioners concurrfng, that, pay
ment Of note by a surety, as between
him and the principal, does not eX-
tinguish the debt, and that said principal
Is correct as held In 10 Texas, 43S, and
affirmed that the same conflicts with 6
Texas, OIL. Affirmed-Watts. G.
w. NJ. Sneed VS.. C. F. Towsen ct al;
appeal from Coryell county.-The court.
alter discussing the necessary points of
the facts, concludes considering the
conflicting character OF the evidence, the
form and phraseology OF the charge, and
its marked conclusion upon the turning
point of the case, it appears that the jury
were controlled and very likely misled
by this charge" Reversed and remand
ed.-Watts, q.
Jesse Thomas VS.. Z. W. Porter appeal
from Burleson county.-Appellant, with
his son, taking possession of l6O acres as
a preemptor, bring the remainder of his |
family about three months after |
wards and staying permanently, |
and making improvements thereon, |
held to have exhibited u sufficient in |
tention to make It his home, and that said |
land became his from the time he took |
possession; and his failure to procure |
survey was attributable to an obstacle of |
illegal appropriation by appellee, and |
not to formers neglect. Appellants eff |
fort, though possibly mistaken remedy,
was sufficient to protect his rights, he |
having filed the field notes In the land |
Office within twelve months after the |
passage of the "act for the benefit of &C.
tual occupants of the public lands, |
passed May 16, 1873. Reversed and judg- |
ment ought TO be rendered for court be-
low.-W. S. Delsny, c.
Thomas A. Pusby VS.. Mary Z. Robin |
son ct al; appeal IRON Tarrant ounty.-
In n matter appertainlng exclusively to |
an estate the district court would not in |
terfere for the benefit of those interested |
I'm that estate, and for its just settlement, |
unless on grounds of fraud or trust. In |
The case here, plaintiffs have no interest |
In the estate of the deceased, of which |
defendant is administrator, they only |
claiming division as between that |
estate and themselves, OF same property |
in which they allege joint interest with |
the deceased. When the right of the |
alleged owner is contested, the probate |
court is not fully adequate to try the |
title and 1t is questionable whether the |
district court would not have exclusive |
Jurisdiction. III Tex. 1871 Reversed |
and remanded.--Delany, c.
A.w Austin VS.. S. B. Allen ct al
appeal from Fannin county.---In % Tex,
all, IL is held, with the current of author |
ity, simply, that the plaintiff cannot |
select at pleasure any number of
signatures supposed TO be those Of the
the case in hand, to be compared by the |
jury with the signature in dispute for
to allow such would raise collateral |
issues. In the present instance the
papers are connected with the case, the
signatures admitted to be genuine, and
the witnesses having seen the defendant
write list Genl. Ey., 5. 6Sl--clted by
Gould, J in AZ Tex. SIS with approval as
bearing rrSn above. When a witness, in
examination in chief, guessed at q genuine
signature the court below did not err in
allowing two papers, with only the sig
natures visible, 10 be held out to witness
upon cross-examination. Aftirmed.--De-
lany, Q.
w. K. Poole VS.. II. & T. c. R. R.;
writ of error to the district
assumed apparent ownership Of goods to
consummate fraud upon another, an
attorney-at-law cannot be heard to deny
his liability to that other for loss caused
by his wrongful acts, under the prlvil-
eyes of such attorney. The court below
could not take judicial notice of certain
not show such to exist. Nor could 1t
charge further that q certain notice must
be given to the company when there Is
no general rule Of law requiring the
same. The station being at the
county seat, in absence of other evil
dence showing that there was another
agent at this point, service upon him of a
citation of a suit pending in the court OF
that county, constitutes service upon the
company. tR. S. 1928. The station agent,
to all appearances, being held out to the
public as the representative OF the COM
pany at that point In regard to all
nelghts, notice TO him OF the stoppage In
transitu of goods in transit TO that point
ought to be notice TO the company. A
railway company, having every facility
of communication along their line, and
Informed OF the minuti@ of the road,
the public not being supposed to be
and possessing the requisite means OF
sending messages, the owner cannot be
required to give the proper notice of stop
page in transitu. Reversed and re-
manded.-Watts. G.
Up. Sickles VS.. j. Z. Largent; appeal
| from Collin county.-General laws OF
| 1878, page Il. section 10, did not require
| the executrix to institute suit for trial OF
| title 10 land, until the court had made an
/ order directing such suit. But where no
/ such order is shown to have been
made, then those interested In
| the property might maintain
/ such suit. and coming in of
/ executrix, as such, does not constitute
/ the dismissal OF the old and the institu-
| ton OF new suit. Tue property being
/ community. the surviving wife was a
i proper party. and her interest could not
Il ~. a ~ l.rk s.at .w lfa xr~f1 nd