The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1883-01-25
THE HIGHER COURTS.
GALVESTON TERM 1881
Synopsis Of Opinions Of the Commits
sion Of Appeals.


Parties desiring. Information upon matters
concerning the higher courts will receive such
by writing our court reporter at Galveston.1
Herndon ct. al. VS.. heirs of Kuyken-
dali from Harris county. This was a
direct proceeding by an application to
the district court to cause to be
brought up the record of the proceed
ings in the county court in the sue
cession of the estate of A. l.. Kuy-
kendall, deceased. The petition was
filed by the ancestor of the appellers.
The material allegations of the petit
ton were, that petitioner was the
only heir of A. j.. Kuykendall and
his wife, both deceased, that at their
death they owed no debts, but owned
certain lands specifically setting them
OUT; that upon the death of his father
one Herndon, while petitioner was yet
d small boy, procured from land Office
the patent to certain land, which he
has since retained; that for
fraudulent purposes said Herndon
procured one Shipman to apply for
letters of administration under a false
pretext that his (petitioner's) said
father was indebted to him; that said
Shipman was fraudulently appointed
administrator, filed an inventory of
the estate, and procured an order of
sale of the land of the estate, which
was never carried out; but afterwards
said HerndOn appeared as the attOr-
ney of said Shipman, and consented
to his removal; that one Davis was
induced to apply for letters of admin
iStration, which were obtained; that
Davis obtained an order of sale, and
did sell the property of the estate
to Herndon at very much de-
creased value; that Herndon has
never paid for the land. Held,
This being a direct and not a
collateral proceeding attacking the
action in the court below, the princi-
pie that the jurisdiction being estab-
Iished all presumptions must be made
in favor of what does not appear does
not apply. Is Texas, 179; Is Texas,
657; 9 Texas, 300; 10 Texas 627. Here
the proceedings were direct not collat-
eral and the party purchasing the land
being the attorney of one of the ad.
miniStrators-he and both of the adj
ministrators were brought into court
fraudulent purchases and sales were
| charged, and that the administrators
were instruments with which Hern-
don consumated this fraud. Held, II
could not be asserted that plaintiff
could furnish ample proof of the alleged
| facts, for his case was founded on mega
tive allegations-which he was re-
quired to support only by prima facie
evidence. This was done, and instead
of attempting to refute it, defendant
Shipman does not answer at all. Davis
only denies any allegation of fraud as
to him, and Herndon merely alleges
that the property was sold for a fair
price in good faith, and that he be-
came the purchaser, but he does not
allege that he ever paid for it; and
further than this no claims against
the estate were attempted in any way
judgment ought to be afflrmed.--De-
lany, J.
McInenery VS.. City of Galveston;
from Galveston county.-Appellan
brings this suit for certain fees al
legged to be due him, and for balance
of salary. The evidence shows that
during the term of office appellant re-
ceived a specified salary under char
ter which provided that he should re-
ceive no fees; that he had received his
salary, and had received the fees, and
without any objection on his part, had
paid them into the treasury, as di.
rected, for two years. Held, His long
acquiescence in the action of the
council, together with the fact that he
had gone on and acquieSced in the
matter beyond the time when it might
have been remedied, precludes hin
from recovery at this date. He
claims q part of his salary on this
ground: That his salary was fixed
when he entered the office and the
charter provides that no salary of Off
GERS shall be changed during the year
| Held, As the charter under which
he claims was derived from a legisla.
tive source they had the power to
change it. Having done so and giveI
a new charter, appellant cannot take
advantage of that fact, but beyond
this the year referred to means the
municipal year and the salary not be
ing changed during that year he is
due no salary. Affirmed. = Watts, j
Friedlander VS.. Ehrensorth; appea
from Colorado county.-A dissolution
of an injunction does not necessarily
follow upon the coming in of the en-
Joined party with an answer setting
up a denial of all the material allega
lions of the bill upon which the in
junction issued. The court may il
its discretion refuse to dissolve thu
Injunction and continue it until fina
hearing of the circumstances would
seem to demand this course. Els
4 pecially should the judge u.s.
this discretion and continue thu
Injunction where fraud constitute
the gravamen of the bill, or wher
by dissolution it appears that if tn
Injunction should be dissolved tn
plaintiff therein would lose all hi
benefits if upon final hearinghe Nigh
succeed. High. on Inj-. vol. 2. SCI
15O8.l The valuation of the goods a
fixed by the officer making the levy
in his return upon the writ. isnot con
elusive as against the injured party
On the final hearing the jury hayin
affirmed the good faith of appellant
purchase he was entitled to the valu
| of the goods seized, and the judgmen
is reversed and remanded.-Watts. !
Burnett and wife VS.. Harringto