The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-05-15

al State Agents, Dallas, VAS.
iered no damage. it would be conclusive q,
that question il the evidence justified The
finding, But here the suit was prosecuted
tor the sole benefit of appellee. When the
facts are sufficiently exhibited by the plead.
inss, but the Judgment fails TO divide the
damages assessed by the Jury among the
parties, as directed by the statute, il is
error. 90 Texas. 46) The case of railroad
company VS., Ledgese isl Texas, 1851 is as
to the matter under consideration almost
identical with this in pleadings and the re.
suit. II all the necessary parties were
before the court and the verdict failed 10
apportion the damage, and no except ion
was taken by motion for new trial or other.
wise, that objection could not be raised IN
this court for the first time. (is Texas, 1913
| II III any manner the mother of
deceased had settled her claim for
damages that should have been shown
aud the judgment could then stand. Had
the suit been prosecuted in good faith OK
pressly for appellee's benefit she would
! probably have been bound by the result
hut such was not done; or is il an answer
TO that objection that tho mothers CLAIM,
might be barred by limitation Reversed
and remanded.
Rindge vs.. Paris Exchange bank,
from Lamar county, Opinion by
West, ]. Case tried after adoption OF
amended rule y, article 1893, Revised Sta.
tutes, having provided a mode Tor obtain.
ing from the trial Judge his conclusions
both of law and fact; the rule was amended
50 that the assignment OF errors could be as
| specific in case tried without Jury as
when there was special verdict. No re-
guest OF the judge was made by either arty
Tor him to state In writing separately his
conclusions oil law and OF fact in the case
Held: We have examined the record, and
| considered II with reference 10 the cues
lions raised by the assignment of error and
IN brief OF counsel, and are satisfied AS to
the correctness OF the judgment Affirmed
Loving VS.. Milllken; from Parker county
opinion by Willie, c. In determining
whether an instrument is TO be construed
as an absolute conveyance or mortgage
when there Is no deieasance expressly
agreed upon, equity looks to all the circun-
stances preceding and attending the ex,cu
ton OF the instrument, and sometimes 10
those which have subsequently occurrers
II there was debt due from the grantor 10
the grantee, or u loan made, which the in.
strnment secures, the transaction will be
deemed mortgage, lot il be dis
gniSed at II may. No evidence OF
indebtedness may be taken or
preserved and yet the debt may remain
Where loan Is made by A. to B. and to
secure the loan BIS. mother deeds her land
| to A. and A. then to b., it was held that
| ne instrument was intended as mortgage.
Reversed end remanded.
Schultz n Bennett, from Bexar county.
Opinion oy Watts, J., adopted. The prop,
oslton that appellee could not introduce
| nNI1AnnA a IN tu a - a
land without first alleging such payment is
unrulabl9. Were appellants claim that
pay Tor use and occupation could only be
assessed on the unimproved land, q Ques-
ton In the case, II is disposed OF by former
discussions in which it is held, that plain
TIL IN an action Of trespass Ia
try title who RECEIVERS is en-.
titled TO rents upon the premises
recovered, including as well the improve
menIs placed upon the land by defendant
~ the land "a Tex, 500 The real ques.
tlon IN the case beng whether or not the
land claimed by appellee was included in
the deed TO appellant and being fairly sub
united TO the jury and their verdict being
supported by ample evidence, 1t will MOI
0s stnrbed. The question as to nav fol
Improvements is settled in 81 Tex, 49, AT
iirmed.
! Conner vs. Holland, from Travis county
Opinion by Watts, J, Adopted.
la Gee We. Scott as Tex. 5i0), il is held
that the statute In force removing the disa.
bllltles OF parties rs witnesses did not rem.
der the husband and wife competent wit.
pesses iJror against each other. Since that
decision the rule has been considerei set.
tied, and, AS there announced, has been
followed in subsequent cases.
Since the adoption of the revised statutes
the rule is otherwise. Appellant pleaded n
payment of the notes. Held The produc-
tlon and introduction in evidence of the
notes by appelltes primi.iAcia established
their claim, and 1t devolved upon appellant
TO prove payment to the satisfaction of the
jury, which not having been done th,
Judgment is affirmed.
Galveston, Houston & San Antonio rail
way vs.. Hinchman Il Leman from Guada
lupe county. Opinion by Walker, y. |
Adopted. Evidence is that party who hau
contracted for appellant stated he was tn,
agent thereof, IL not admissible to estab
Iish the truth OF such statement, but IL
admissible as a circumstance connected
with the making Of the contract that sncl
agent asserted that he was the agent of Az
pellant. The court did not err in charging
The jury that when the freight reached dc
iendant's ropd, If defendant knew of Thu
contract made with plaintiffs and theI
hauled the freight over its road the jurl
would be warranted to find that the con
tract had been ratified by defendants com
pany. Affirmed
Brownson VS.. Boggess; from Monlagu
county. Opinion by Walker, p adopted
The sole question raised is whether, unde
The general probate laws OF 1876, an admin
lstfhlor SUING alone AS such can maintain
, an action oil trespass to try title for the re
,, covery OF land in suit involving the It'll
thereto. Without wadlng through the val
Gus stages Of the opinion IL
sullcient to say, IN conclusion, III
court held that the entire liue of decision
consistently recognized this right OF the I'D
ministrator to sue Independently of thu
heirs for the recovery Of land in trespass t,
try title. Affirmed
COURT OF APPEALS
Gutiy vs. the State, from Hood county
opinion delivered by Wilson j. This is
conviction tor an assault upon A. Libs
The exceptions taken to the charge OF tn
court are untenable. While the charge
not strictly correct in all particulars ye
NE errors are immaterial, an d are NOR
favorable TO applicant than the state
Affirmed. Muchl.vs. the State, from Gaul
alupe county, opinion delivered by Wilson
This is a CONVICTION of misdemeanor 70
the theft of hogs of less value than $2t
There is no statement Of facts in the recor
which we can consider, and in the abscnc
OF such, being of the opinion that ,he II
dictment and charge of the court Is sutl
Gent, we can but affirm the judgement
Affirmed.
Reed vs.. the State; from Colora do county
Opinion delivered by White y.
As this cause was tried before the regula
presiding judge, the statement of focis |
the record, which is gned and approve
by a special judge, cannot be considered b