The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-05-31

Supreme Court.
Andreas Langbein VS.. James and
Thomas Hickey, executors; appeal
from Kendall county.-This being an
action OF trespass to try title, the de-
PENDANTS il error, Case and Fredrika
Hasten, test the right OH being sued,
under the statute R. s. 472Sl to call
in, the plaintiff in error Langbien, as
their Warrantor and make him party
defendant. Held, That plaintiff
when thus cited had every right the
original defendant had. Plaintiff in
error was, after the proper pleadings
were filed, showing that ne was the
Warrantor of the defendants, Hasten
and wife, properly cited to appear at
the May term, 1882, of the district
court for Kendall county, and defend
the suit. The court met May %.
Plaintiff had until the fifth day OF
the term to enter his appearance.
The calling of the case on the 18th of
May and entering Judgment by de-
fault was premature. Judgment re-
Versed and cause remanded.-West,
A. j.
oh. Synder ct al VS.. Wiley s. Por
ter appellees, from Williamson
county; held that the court having
found correctly that the appellees
were not entitled to enforce the lien
claimed, should have proceeded no
further in the case. The amount
being too small to give the court juris-
diction and the right of foreclosure
being the only ground for retaining
the case, and this right not being es-
tablished the court could not proceed
further and suit should have been dis
missed for want of jurisdiction. Ap-
pellants ct al being trustees of the
II. E. Church at Round Rock, d cor
porate body, even of the amount SUI
feed for jurisdiction the court could
not render Judgment against the
trustees in their individual capacity,
unless they undertook to become per-
sonaiiy liable for the debt of the cor
poration. Judgment reversed and
case dismissed.-WeSt,A A. j.
Silas Hornbaek ct al VS.. John Ell
ers.appellee; from Wise county.-Ap-
pellee set out specifically the exact
300 acres of the Harding survey
which he sought to recover as his
homestead, asking no other part of
the survey than the 200 acres fenced
and improved as described. The jury
found adversely as to his claim for
rent, and that he Was not entitled to
the 200 acres set out IN his pleadings
as his designated homestead. They
found, however, in his favor for 900
acres OF land" without further deslg-
nation and judgment was rendered
Tor him for an undivided 200 acres to
be taken out of the Harding grant,
the Judgment being silent dis to
whether or not the 200 acres should
include the cultivated land and
dwelling houses, etc. Appellants in
terposed uncertainty of the Judgment.
Held, That the objections were well
taken. Neither pleadings nor proof
justified the verdict and judgment.
The Judgment, therefore, is reversed
and the cause remanded.-W est, A. j.
Ysmail Octioa, appellant, VS. J. P.
Miller ct al, appellees; from Ell Paso
county.-Held, That will cannot be
used in evidence in this state as con-
stituting title, or a link in the chain
of title to property, without it has
been probated in the manner and
form required by our law. The court.
under the circumstances OF the case,
did not err in excluding the Will OF
Miller in the absence of evidence OF
its probate under our laws. In this
case, as its genuineness is admitted,
and the proof shows that it has not
been under the control OF the appel
liant, nor in its proper place of de-
posit, but has been in the possession
AMI under the control of appellee ever
since the death of the testator, it may
still be probated, if the appellant
takes the proper steps and makes the
proper proof, to the satisfaction OF
the court. The court might be justi-
fled in UNFOLDING long possession I'M
der will of ancient date. coming from
proper custody, where probate was
impracticable. This point, however, is
not presented in this case, and
the decision is limited to the point,
necessary to be determined, and the
deed from Calistia Dias and her hus-
band Santos Dias, should have been
admitted in evidence. The signature
OF Santos DiaS to the deed and his
acknowledgment was sufficient to
show he had joined with his wife in
the conveyance. The court erred too
in excluding the proof of payment OF
taxes. The comptroller's receipt is
neither the best nor the only evidence
of that fact. The court also erred i'll
excluding entirely and for all purpo-
Ses the will above referred to, even
though it was not prObated, mas
much as its existence and genuine
ness was admitted in open court.
Though not proof of title in the alb
sence of evidence of its probate, it
could, when admitted to be genuine,
be used to show the good faith of APP
pellant in making the purchase and
putting improvements on the pro-
perty. For these and other reasO.s
noticed the judgment is reversed and
cause remanded.-West, Al.
T. j. Stewart, plaintiff in error. VS..
c. S. Broomel; from Falls county,
Allegation that sworn account was
not sufficiently full, in that it did not
give the particular dates when each
parcel of material was delivered.
Held, that the failure to give dates OF
delivery of each part Of the whole
does not render it uncertain as to the
things delivered. AS to the question
of lien involved, the court held that
the statute gives the lien upon house
constructed with material furnished.
dAu d1SO UilC 1OI vi 1OlO uPob
which it is constructed; and it would be
novel doctrine, under such statute
as we have, to hold that where part
of the property upon which the lien is
given may have been destroyed by
ire or otherwise, that therefore the
creditor looses all the residue of hi
security. The statute was intended
for the protection of material men
and mechanics, and they arc certainly
not expected to take the security
which the law holds out to them as
insurers that the entire property upon
which the lien is given shall continue
to exist. or otherwise that they shah
loose the benefit Of that part OF their
security which may be left after part
has been destroyed without fault OF
the lien-holder. Judgment affirmed.
-Stayton, a. J.
II. P. Hlldeprand VS., Cora NJ.
McMahon. W. Il. Golson; from
Mel ennan county-One of the ques-
lions raised in this case and which is
decisive of it, is; Has ajustice of the
peace jurisdiction to foreclose an at
| tachment lien on land2 Held, That by
selling land by virtue of the eXecu-
ton issued before judgment justice
exercises no higher power than
| in making gale under process issued
after wards. He is in effect foreclosing
3 lien as much in one case rs in the
6fhar the one haVinlr hepn Obtain {;