The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-02-04
COURT DECISIONS.
synopsis Of Opinions nj tho ssprsr.s Court,
GAlvestos Term, 1883

GAlvestos Term, 1883
Lilies VS.. Wood & Co; from Newton
county. Appellant was nonresident, and
being served with citation he appeared and
plead to the sulllolsncy thereof, wherodpon
the cause was postponed. Afterwards he
youn arily appeared and plead to the iuris'
dlction of the court and specially pleaded
his non-rosidence; that the cotton for whose
value lac was sued, was without the courts
Jurisdiction, that the tort, II any, com.
planned Of VAS committed in Louisiana, Wa.
without the courts jurisdiction and yariOu,
other matters, but all pertaining To
the y jurisdiction of the court.
Held though all the pleas
as above set out, were fully sustained In
the court below, yet as appellant vOunta-
Iily appeared and thereby gave the justice
court jurisdiction, he could not Withdraw
that jurisdiction on appealing To the district
court, Woods & CO., the appellces. not bo-
ing parties TO the suit IN Louisiana between
Lilies the appellant, and Abbott, that
Judgment could MT be introduced IN oyi
deucc To show that Lilies had right to have
| the cotton subjected 10 sale for the pay
mcnt of the debt due him, which right was
superior to appelloe's night To. tho property
purchased from Abbot prior TO the insitu'
lion OF the suit, l3o Ia. ST. 6Ol. Affirmed
Stayton,
Davidson vs.. Knight; from \ Dwton coun.
w. Appellant sued appellee by Injunction
to restrain him from eating timber lrum
land belonging to appellant. Judgment
for appellee, The evidence shows Ina mp
pellant, 10y AN instrument IN writing odd
to ono NanMelte all the saw-stOck timber ON
the land herein. Van Melto afterwards,
through his authorized agent, sold the ap-
pcllro the right tucut all the suw-stuCk tim
Der on the land which appellee had not cut.
This sale OF the right TO cut the timber ", s
proven To have been done with the knuwl.
edge and consent oi appellant, 1t was also
In evidence that appellee had not cut any
more timber than hp was really entitled 80
90 do under the contract made with the
knowledge and consent Of appellant rs
/ Tex, lo7 The charge the court IS cor
rect there appears no error, aud rs the JUS
tico OF the case seems to have been reached,
It is affirmed. West, J.
Robinson at al. W. Fitzpatrick from san
JAuuto county, IhtS isl suit brought by
appellee against appellants, who were puO.
lie glnners, Tor ncglccting TO Rn his cotton,
whereby ho was damaged, etc. Held |
| The court should have sustained exceptions
to the petition In 81 far as IL sought 20 re-
COY Z ia nagCs for attorneys fees expended
IN prosecuting thissuit and tor damages tor
expenses In attending courts, etc. 2, The
court erred in charging the jury To find for
appellee the highest market value of the
cotton from the time IT was demanded
until IL was delivered Held. the
record dsCloses no satisfactory evidence
as to what such value was, ana besides the
court having properly excluded averments
IN the peiluOn setting out fraud aud malice
IN the transaction, the court is not prepared
TO hOlu such to be the measure ut damages.
The rilo is that IN the absence of any clo
mcnts OF fraud or malice, that the ordinary
rule would DO Applied which /, to allow
market value OF the co ton at the time OF
| the breach complained OF, and interest on
/ such value to the time of trial tFleld, on
/ damages, Secs 1901 aud 1914 % Tex, iuj
IS Tex, 2l6), Reversed and rentauded
| West, J.
benson vs. Love, ct al from san JacutC
county, The only point raised on this APP
peal anf noticed, is the error assigned, tbs
the court refused the second special IA
stuCtion asked, which iSed the measure .
damages upon failure of title conveyed by
a warranty deed, when the paramount till,
had been bought IN by the vondee At ia,
amount OF expenses incurred hy the latte
IN purchasing aud perlccting his title. lhi
charge IL correct in law sh uld have beer
given, As tho facts proven would have sup
Nported It. Held, the great weight OF author
ity nGlines 10 make the prlnCiplp an
nouuCcd in the special charge asked, "A uui
vcrsal rule; such being the case It shOuh
have been given lSed. ON Meas Dam p
IA, Rtwle ON Gov. Title, 100 Field on Dam
1906 II y H., Il. 3 Iowa, 400 ~ Wis 6lN
l2idem, ~, 10 Mo, $50; ~ Tex, $3.50 ST.
the latter case for one very Wmllar TO thi
In every particular. Reversed and 10
handed. Willie, G,
Mnsterson vs.. Cundin; from Houston
county. a general demurrer was sustainc,
In the court below, on what ground Dies no
appear, but appellee, in his brici, claims /
TO be- sustained ON two grounds: |. Tha, i
appeared upon the face OF the petition tina
the defendant was not II resident of liuu tol
county. ., That the judgment sought 4
DO revived was not dormant, and u scir
iaciss to revive II would not lie, Held, tn
privilege accorded one of being sued in th
county where he lives is personal and I'm
less specially claimed, Is considered waived
The petition failing to show that h
is being sued in different count
from his residence, u plea OF abatement lie.
but It the petition does show such, 1t mus
be awaited of by IA special demurrer, but
proceeding to revise u Judgment by Scir
tAclas not being u new suit, but continua
ton ot the old one, the proper venue
the county wherein the original judgmen
was rendered, 90 Tex, 5N) 2, P.autil
being authorized to take any steps know
TO the law to revive his Judgment and II
store ia lien, aud II entitled to an tNocuii ion
~ appellee contends, he could not I've .iu
fined tn that remedy, and the court crrci II
sustaining tho demurrer; % Tex, rs
Reversed and remanded, Willie C. l.
Sabine n East Texas Railway vs.
loachlmi; from Jefferson county. rhis /
an action AGAINST tho railroad company 70
damages caused to appcllee'S land an,
growing crop, by reason OF an overflow Tn
case III Tact is one ol breach OF contract fu
building the railroad in careless an,
negligent manner, rs to materially iniur
appellee's land, Held, the damage. re-
coycrable are the same as are recoverable,
IN action for trespnss especially rs tn
railroad had been notified that Ia,
damage which accrued would mos
certainly do so, ualeSs the tract
etc, were repaired, The opinion herein Il
confined to the particular facts in this case
The measure oi such damages In this case L
the actual value Vt the crop at tho time u
Its destruction, with iptcrest to the time .
trial. Ana as to the damage to the land b,
tho overflow, the measure OF damages 18th,
actual cost IN putting tho land back int,
the same state " cultivation as II was whe,
the overflow occurred, but damages for los
by reason ot delay in getting the crop I,
market cannot be maintained, Reverse,
and remanded. Willie, C, ].
ynopsls OF opinlons Of tho Court Of Az
peaiH, Galveston Term, 1883.
Brown VS., the State; from Uvalde county
An indictment is insufficient when tn
charging part thereof Is but the allegation
did otlsr to bride II witness to disohey
subpoena and not to appear before the dis
tr'ct court and testify against him." for III,
reason that it should contain and charc,
defendants acts, so us to enable the court
looking at them alone, tn dotcrmin,
whether they constitute an OTTER to bride /,
law, Tho indictment must shoy what the
defendant did or said, aud they must no
appear rs conclusions of law. The exist
| puNp of "A snhnnAnp tnnat h, ~ an.l IA