The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-12-02

Synopsis of Opinions OF the Commission OF
Appeale. Tyler Term, 1889.


Washington county. Although an alleged
statement as an assignment of errors is in'
corporated in the record. yet if not signed
by the parties TO the suit or their attorneys
and properly authenticated by the file OF
the clerk OF the court, it cannot be consid-
cred an assignment of errors. In the ABB
sence of a proper assignment OF errors, iun-
dame ntal error must appear or this court
will not revise the Judgment; al Texas,
GO; AS Texas, SOY No fundamental error
appearing in the record, the Judgment is
affirmed. Watts, /.
Maxwell vs., Hillburne ct al; from Lamar
county. Where a defense in u case is res
adiudicata, and title acquired by purchase
ut assignec's sale in bankruptcy where
neither the bankrupt's wife nor the party
now claiming through such title were par
ties TO the preceding to set aside the sale IN
the bankrupt court, the said wife is not
concluded by that adjudication. The
homestead did not pass into the assgnee's
hands and was not subject to forced sale,
as part Of the purchase money paid by the
purchaser at the assignee's sale went to dis
charge valid lien on the homestead Ut was
nsed TO pay oil deed of trust thereon, the
said purchaser il entitled to be subrogated
20 tho said lien 10 the extent of the pnr-
chase money so used. Reversed and rem
dered in favor of appellee for the land and
for $40 for use aud occupation. Reversed
and rendered, Watts, j.
Aycock VS.. Hearne; from Robertson
county. Suit was brought on written
contract, executory In character, containing
stipulations that the attorney employed
should sustain certain will, and recover
and secure the interest Of appellee and n
certain minor under said will against "alI
claimants" Held, the words "al claim
ants" mean not only the Hearne family
claiming under the will, but everyone else,
and in suits then pending the attorney
should have represented appellee's interest.
One Of the parties being u minor, the court
correctly charged the jury THAT if Alkaline
Hearne, as the heir of her son (the minor,
avoided the contract, or if the minor before
his death (not having reached his majority,
or his mother, after his DEATH avoided
the contract, plaintiff could not recover.
The principle announced in Stuart VI.
Baker az Tex, Az, is correct as 10 exc
cuted contracts respecting land but the OPP
p0site is the correct rule respecting eXecu.
tory contracts relating to land; Tyler on
on infancy and Coyerturc, PIP, 62 gu. Alkaline
Hearne had by the will only liberal sup
port out of the estate, out in the event her
son did not provide her such, she was to
have life interest in certain land. Held,
no legal basis for recovery being laid by
the ple0dings and established by evidence
against her as party to the contract, the
court correctly charged that, having failed
to show the value of his services or her in
terest, ii mattered not who first violated
the contract appellant could not recover.
Affirmed. Watts, j.
Barley VS.. Tarrant county from Tar
rant county. This suit is here upon its
second appeal. (See 63 Tex, 25l) Appel.
lees then tosk q non-sut and plead as de-
lenses to appellants cross-action the mat
ters formerly plead as matters of recovery.
AS the auditors report, objection to the nd
mission Of which was made contained re-
port on all the items in controversy it was
admissible, and the court properly charged
that IL was not conclusive as to the matters
contained In II, but that it should be con-
sidered in connection with all the other evil
dence. The amount allowed appellant by
the Puditor upon the order OF the chief Of
police is the character OF document decided
in Leon VS.. Houston, 40 Tex, $50, TO be in
admissible as basis for recovery. Ii was
upon appellant to conclusively show the
justice OF his demand as well as his mis-
take. The receipts of Torrance going to
prove that he was acting treasurer OF the
school fund when they were given were nd
Ulis,dlUlt. AlliTIueu, NdllS, j.
Roberts vs.. Cheeseman from Washing
ton county. The proceedings being had
under Art. $50, Pas. Dig, it was uunects-
sary to show by the petition for certiorari
any reason why the remedy of appeal was
not rcsorted TO. The motion to dismiss the
appeal on that ground was properly over
rslod. The statute not exactng bond in
order TO appeal by certiorari, n supcrscdeas
was not necessary to be issued There IL
no statement of facts or bill of exceptions
OF any Kind in the record, and consequent
~ other questions are not considered, AT.
iirmed. Walker, p. j.
Swearingcn VS.. So, Relic ct AL from
Bureson county. While the court erred in
charging the jury II was not material error,
IL charged the jury that at the death of
Mrs. So. Relic her homestead right de-
sjended to the persons constitut ing her fam
lily. Her husband being the head OF her
family during her life continued 80 after
her death, and had the sole right to die.
tate TO the family where their home should
be. The children had no homestead right
against their father by virtue of their
mothers interest. community property,
they Inherited their mothers interest rs in
any other community property. If the
deed OF trust was void as to Mrs. So. Relic
on account OF any fraud practiced upon
her, 1t furnishes no basis of a sale and con.
veyance OF IL by the trustee, and consc.
quently the other error of the court is I'M.
material, Heirs may plead non iactum by
their mother or make any defense she may
have madc without ieopardi2ing their
homestead right. A general order of sale
of land OF bankrupt does not include his
homestead where such is not included In
sprcporty, but it should scheduled ~ his
homestead, and where the bankrupt laws