The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-05-09
THE COURTS.

nougherty VS. "V0'e' " "'' ~, -"""'
- Opinion by Sssyton, J., Whether
=, not appellant acquired an irrevocsble
rsr TO collect the Judgment against
~ and to appropriate one-half ofthe
.nn, collected to his own use, depends upon
..na,her or not the power conferred upon
,hs appellant by Petrie was "a power
s1rrIed with an interest "A power
s,rn,et with an interest is a power which
s.,,upanies, or is connected with an il
,a,sst. The power ami the interest are
,,i,ed in the same person. But
,S the word interest means an in
,s,s,t to be produced by the power they
.sr never be united. The power ceases
w., the interest commences, and there
~ cannot be said to be coupled with II.
Snower OF attorney gwen TO party to col
iact a Judgment tor which he is To receive
ons half OF the amount so collected Is not
,bsralore a power which is not revocahle
The sheriff having process In his hands
uas bound to obey all lawful instructions
I'm the owner of the Judgment or the at
.nrnsys of record for such owner, and any
ciber person assuming the right to control
Snch officer must clothe himself with the
la or EQUITABLE title thereto. Affirmed
caves AZ Hickman from Bexar Co., opin.
ION Inv Delauy !. adopted the Act, of Oct.
d 1871. regulating the removal OF disablli-
tiss of minors, was passed Ill the interest Of
nersons of that class anu not strangers or
fsI,tions of the minor, In any proceeding
punishment suffered, it might be shown in
mitigation of exemplary damages, but such
il moi here pleaded (ol Texas, AZ. In n case
in winch plaintiff claims damages, actual
and exemplary, the jury should be in
strncted to separate the one from the other
in their verdict, but failure so to do is not
Of itself ground tor reversal, ii no such in
strnriions is asked by defendant. Affirmed.
Hubbard VS.. Lord; from Wilson county.
Ooinion by While, c, !. The only question
in the case is MS to the jurisdiction of the
district court OF Wilson county. Lord was
q citizen OF Dewitt county; the prosecution
AGAINST Hubbard for theft was instituted
there. but the arrest took place in Wilson
county. Held, this case does not come with
in the eighth exception TO article lbs Revised
statutes. Under article 2i3 of our Grim
nal Code it is an oiienSe to institute a criml-
ma proceeding against any person for the
purpose of yeXing, or harassing, or iDjuring
him
The oifznse consists in instituting the
nrosecuuon or causing it to be instituted.
Under article %, G. Q. p, aud the previ.
Gus articles of chapter ., malicious prosecu-
ton is not mentioned as one of the oiienses
excepted from the general rule. Clearly
then the proceedings constituting the Of
Tense having been commenced in Dewitt
county, no jurisdiction could be had in
Wilson county. The distinction at com
mon law between an action for false i'm
prisonment and that tor malicious prosecu-
ton is that the former was suit for
trespass and the latter an action
upon the case. Here the arrest was made
BY lawful officer upon proper process is
sued by magistrate having authority so
10 do and the officer committed no tres
pass in executing it, and the party suing it
out was alone liable, and he only in
Dewitt county. Affirmed. Opinion by
Watts, adopted.
hanson county. This case does not in
yolye the question decided in Anderson
county VS. Kennedy Texas Law Review,
volume /, page 2lS), but the jurisdiction OF
the court in this case depends upon the
power ofthe county judge to issue an in
junction To restrain and enjoin a judgment
OF Justice of the peace Tor sum less than
$40. Held, as the constitution gives the
county courts, or judges thereof, only
power to issue writs of mandauus, III
junction, and all other writs necessary tC
the enforcement OF the jurisdiction of sale
courts, land the county couIS herein moi
having jurisdiction of the subject matter by
reason of the amount in controversy had M
power to issue the injunction. Reversed
and dismissed.
HUFF VS.. Clark; from Wilson county
Opinion by Delany j., adopted. Under
~ ~ IN M
the act of August T. 1876, Section 1 revised
statute article 3,l7l;) in all cases wher,
II is sought to nxa mechanics lien upor
the homestead, the contract must be IL
writing, This view is put beyond disput,
by reference to article 2,3ll, revised
statutes. This view disposes of the case
for as the contract relied on was verbal NJ
lien could attach to the property, and th,
lien set up in the petition was the sol
ground OF the jurisdiction. Reversed ant
reEanded.
Moore & Partain VS.. Wagner, from
& ladalupe county. Opinion by Watts, j,
adopted. Suit for undivided interest in
lot in Sequin and for partition. Appel
lants claim as the heir of their mother Mrs
s., who died in 1853, that Is her community
interest in the land. Their claim OF title /
conveyance from S. as administrator OF II
to f., dated September 1, 1915. Reconvey
ance from +. to S. September 81, 1916
death of Mrs. S. in 1858 and their neirship
Appellee's claim OF title is through tw,
sources, first, deed from II. to h. Octobe
70. 1889, from T. TO James G. November 81
1879. gut claim deed from Il. W. q. to +. II
K. February ID, 1865, proof OF death U
James G. and sole heirship OF L. W. U. con
veyance flom +. l.. X, to l., and from |. L
appellee. Second deed from G. as ad2inis
traitor of 5. to |. June s, 1878, aud from
10 appellee. Held, his conveyance TO X
whether recorded or not Invested him OF al
title to the land. The subsequent convey
ance by an administrator of III. to F., an
by Il. TO. 5. could not defeat the title to II
or those claiming under him, as it is nc
shown that either purchased without motto
OF the Il. deed, nor that either F. or
pud value for the land, both of which wer
'ces3ary in order to defeat that prior col
Vsyauce. The deed from Il. w. C. in cor
nsctlon with the proof that James G. die
leaving the former his sole heir, was SUI
Gent to pass title to +. l.. K. Title by il
heritance is as etfectual as written con
veyance. Under his first chain Of title al
pellee showed superior title. But if thi
chan should be excluded from consider
ation appellants still cannot recover. 1t |
admitted that G., as administrator of s
S''u 'hc anu W q, uuutT Ndllu OTuCTS Oh III
probate court. 1t may be presumed tina
the sale was made to pay debts. 1t nc
peing shown when s, died, or when the az
minlstration was opened upon his estate
VIII not be presumed that this was so lon
after the death OF Mrs. s, that all the con
munlty debts were either paid or barred. /
sale made of community property by tn
administrator of the husband for the pul
pose OF pHying the community debts passe
ute to the property. Affirmed.
Iexas n Pacific Railway vs. McAllistei
rom Harrison county. In order to enttl
corporation chartered ny congress- to r,
move, under section 60 OF the Revise
statutes of the United States circuit cour
suit commenced against 1t in a state cour
It's application for removal must show this
corporation is not a banking corporation
ahu That it has defence arising under tn
constitution, or some treaty, or law of III
United States.
The state court to whom the applicatio
lof removal is made, has the right to e,
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