The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-02-25
synopsis Of nplnions of the Commission OF
Anpenl.. GalAeston Term. 1883

synopsis of nplnions of the Commission OF
Appeals, Galveston Term, 1883
Houston, East & West Texas Railway vs..
Grimstead; from Harris county. Although
the application for continuance might not
be In strict compliance with the statute,
Yet being addressed to the discretion Of the
court, and an abuse clearly appearing, be-
cause the desired evidence was both mate.
rial aud probably true, new trial should
have been granted. In considering dam
ages against q railroad caused by a detec-
tive road bed, only such sum can be recov.
cred as IN the Judgment Of the Jury would
compensate the plaintiff, and his age, prob.
| able duration OF lie, and his ability to per-
/ form before and after the injury, and the
mutual anguish and mental suffering are
/ to be considered. Reversed and remsndcd.
/ Watts. J.
| Tudor VS.. Mayo ct al. e-om Lamar
county. Although not specifically assigned
/ yet error gOingto the foundation ofthe action
| will be considered nc Tex, 81 The only
difference BET Seen the rights. Of Il wife and
| husband to their interest in community
! properly Is that the husband has control
over the wi'c's interest during his life 4
! disposition OF her interest by tho husband $
| will could only be rendered effective by her
election to ,ake under IL. \ Judgment in
| favor Of or against a minor not represented
/ by guardian or next friend, is not void
and can only be avoided by judicial pro.
ceeding. As Tar AS the record shows, -ths
/ Judgment ought to be reversed and re,
manded, Watts, j.
| Goggan VS., NuuaWs ct al from Calves
/ ton county The county commissioner,
court OF which ape liant was u member
had met at u regular term to leyya tax (oI
| county purposes, such lax could not be
! levied without his presence. Knowing this
! he purppsely absented himself whereupon
the SAID court issued an attachment for
| him, The sheriff brough, him into court.
| he was released and the court proceeded Ia
| business. Held, under these facts by viz.
! tue OF Arts, lol1 and ldl7 Rev. Stats and
sub, T. Arr. l3lI Rev. Stats, the court did
| not exceed IT'S authority and an action
| against the members individually for false
| imprisonment cannot be maintained.
Affirmed. Watts, /.
| Houston County W. Dwycr ct al from
| Houston county 1t was not intended by
| the act of 1874 TO secure immunity TO the
sheriff or officers therein mentioned from o
| right oil action against them then existing
independently of such act The court,
/ therefore, improperly charged the Jury.
| The bond herein being given under the act
of 10, entitled AN act for the assessment
and collection of taxes, approved August
| 10, 20, was not repealed by the act en-.
titled IAN act to give effect" etc, ap-
proved April %, II. The liability of the
suretles upon the bond, therefore
did not cease at the time for any
subsequent defect. The assess.
ment rolls being delivered TO The
sheriff would be sufficient to charge him
with the amount of taxes shown TO be due
| thereon. 1t was then upon him to show
that he had not collected such amount. or
II collected that IL had been paid over 10
the proper officer. Reversed and remanded.
Watts,
Wooters ct al, VS.. Smith, from Houston
county II witness withhold a material
fact to the injury OF a losing party. il h,
good ground for u new trial. but where
such was done because the witness mem.
DRY did not serve him, it is not. The court
ca not err IN rendering Judgment against
the principal aud suretieS upon the inicnc.
uoh hond Tor III per cent, upon the amount
enlolned, hut since the Rey. Stats. no iudg
ment can be rendered against the sureties
upon the amount enjoined; (Rey. Stats
Art 1856, Affirmed. Watts /.
Baker W. WATSON; from Harris county.
lSee THIS cause upon former appeal re.
ported in 81 Tex. 100 -RGp The evidence
on this appeal does not warrant presump
ton OF bad tuith on the part of Baker act
| my in his oillcial capacity, Fraud Will moi
be presumed, IL must he established by
proof warranting a reasonable belief of il.
ex'stepce, for fraud is not presumed except
under strong circumstances, and to raise
such presumption, the facts must admit o
no other conclusion. Its question of fact
| whether the true character OF contract b,
that OF an actual sale or an executory con
Tract 10 sell. Reversed and remanded
| Walker, p. ].