The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-03
COURT DECIsr oN.
Austin Term, 1sss--synopsis OF Opinions
Commissioners OF Appeals.


]. w. Fleming VS.. John 4. Shelton; error
from Tarrant county. In the absence OF
evidence to the contrary shown by the re-
cord. the intendment and presumption of
the law is that whatever evidence was pro-
per or necessary to support u judgment by
default, under the facts of the case, was adj
duced at the proper time by the plaintiff, If
indeed any evidence was required; IN the
absence OF an answer, where nothing is con-
tanned In the record to warrant reasonable
suppostion that writ OF error was prose.
cuted with the expectation ola reversal OF
the Judgment for any other purpose than
delay, the court will award ten per cent
damages for the delay. Affirmed. Wal
ker. p. c.
The Falls county turnpike road and
bridgelcompa VS.. j. ID. Jordan; appeal
from Falls county. A general demurrer
will not reach q merely informal or detect
i've ayerment: if a cause oiaction be shown
but be informally or effectively stated, the
objection must be taken by special demur-
rer. The petition did not allege the amount
of tho physicians bill, that was left blank.
Held, the defendant having gone into the
trial without excepting TO the petition spe-
cially by pointing out the indeliniteness as
To the amount OF said bill, the objection to
Ing tho trial for want of allegation as
to the amount, will not be heard Evl-
dence respecting the time lost by the plain
tiff In consequence OF his injury and the
value thereoiis admissible where the pc.
tiliDn describes his occupation and the loss
which ensucd to him in consequence OF
being disabled from the wound. DANA
ges for loss OF crop expected 10 be raised IS
too remote for consideration. Affirmed.
Walkpr n n
Houston & Texas Central railroad COM
pany VS., James l., Leslie; appeal from
urayson county. Appellee HAD boarded
appellants train at Van Alstyne to
assist ladies in finding seats, and while
thus engaged the train started. Appellee
then jumped from the moving tram and
was injured, for which he brings suit.
Held, tie liability of the defendant is meas
ured by the fact that the injury received
follows proximately from the culpable act
complained of, and If the erysipelas sprung
from the injury, the dangers from that DIS
ease, as well as the salIerings produced by
il, constitute u portion OF the injury Itself,
and is none the less so, because under SINH
lar accidents producing fractures that dis
ease would not ordinarily ensue; IL
appearing clearly from the fact proved that
the leaping from the cars in motion is UNI
safe and dangerous, 1t follows that plaintiff
contributed by his want of proper care to
the causualty which occurred. There isl
other connection of the defendants agents
with the accident except such culpability
as may be implied from the short period OF
time the train of cars remained at the sta
ton The failure to stop the five minutes
required by law was not per ne an act rem
derug the defendant liable irrespective of
the question oil contributory negligence on
the part of the plaintiff. A person cannot
recover from an injury received by reason
Of the negligence of another ii his own want
of care directly contributed to the injury.
But in order to shield the other from liaOil.
ity the person injured must have not only
been negligent, but his negligence must
have been the proximntc cause OF the injury
He must by his own want OF care dire lily
contribute to the injury. Reversed and
remanded. Walker, y, G.
Il. Il. Dimmitt vs.. George GARNER ap
peal from Guadalupe county. II is SUI
iicient objection to the granting of an in
junction that the party aggrieved has iul
aud adequate remedy at law. Equity
courts will not lend their aid for the pro
lection of right or the prevention OF wrongs
where the ordinary legal tribunals are ca
pablo of a1ording sufficient redress Mort
gagged property can be taken in execution
subject to the lien of the mortgage, The
commissioners incline to the conclusion
that the act of 1874, whilst nilordine the
remedy of a distress war, ant against the
property of the tenant in the mode pointed
out by that statute, it did not extend a
preference lien in favor OF the landlord ex.
cept as to such property us is specifically
designated by the first section of that stat
ute. Reversed and remanded. Walker, y. c.
John @. Sedgwick VS.. j. X. Patterson ct
al; appeal from McLenan county, To fla
a lien under the statute Art, 7ll2, Pas
chol's Digcstl, the provisions of the statute
must he complied with in every essential
particular. material men," when fully
complying with the statute, are entitled
fully to the benefits Of the act The lien |,
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-
ditions prescribed for its formation and
ils continuation. The requisites of the
statutes are necessarily descriptive Of the
lien, and II omitted in the plead ngs, should
subject them 10 demurrer. When the suit
was brought the district court had iursdic
ton OF amounts in controversy over 500
The Jurisdiction Of that court was ex
tended to $500 during the tendency of thi,
suit, and the court then dismissed tn,
cause, because the amount IN controversy
was less than $500. Held, the court orreC
in sustaining the demurrer and dismissn,
the suit. Reversed and remanded. Walk
N.