The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-01-18
Other Yory Interesting Clippings.
synopsis of Opinions OF the Commission o
Appeals, Galveston Term, 1889.


Appeals, Galveston Term, 1889.
Carey & McRae VS.. NJ. Williams; from
Polk county. THIS suit was brought by ap-
pellee against one Hunter, as principal, and
appeila s are sureties upon certain con-
tract , ecuted by them with the United
States ttorney-general for the transporta.
ton OF mail. Appellee bases her suit upon
breach of that contract, alleging that one
ofthe mail carriers employed by said Hun.
ter had, in Polk county, broken into and
robobed the mail of certain registered
letter containg 500, which belonged to ap-
pellee. All the parties belong in Mont.
gomery county, and while no opinion is d.
rectly expressed the court hesitate to say
that the Polk county district court has juris-
diction of the subject matter, and inasmuch
as the sureties alone appeal, they pass that
question. Held further, the question for our
maintained against the sureties? The
suit is evidently based on the contract, or
else they have no rights at all. Then as to
the contract, The principal may be liable
to the appellee on consideration of policy
ourtide and beyond the contract. Thesu
ties obligation extends 10 the contract
strict s.lmi juris, ana their obligation car
not be extended "one jot nor title beyond
what is nominated in the bond" 1t has
been strenuously denied that mail con-
tracto rs liable to private parties for de-
fault of a mail carrier, as Ohio, 523. Eos.
ter's Rep, 252). But the first of these cases
isquestioned in LIST American Leading Cases,
paee o2l. 30 n are strongly disproved in
II Grattan, go But as TO the sureties,
they are alone liableto the parties with
VIII m they contract, and as to them, the
judgment ought to be reversed and the
cause remanded. Delaney j.
Mclneny vs. the City of Galveston, from
Galveston county. Appellant brings this
suit for certain fees alleged to be due him
and for balance of salary. The evidence
shows that during the term of Office appel
liant received specified salary under
charter whish provide that he should re-
ceive no fees that he hal received his sal
AIRY, and had received the fees, and without
any objection on his part had paid them
into the treasury las directed, 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 mat
ter beyond the time when it might have
been remedied, precludes him from re-
covery at this late date. He claims q part
of his salary on the 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 legislative source, they
had the power to change it. Having dons
so, and given new charter, appellant can
not take advantage of the fact; but, beyond
this the year referred to means the mUnici.
pal year, and the salary not being changed
during that year, he is due no salary
Affirmed. Watts, j.
Frledlander Us. EGrensworth; from Col
orado county. A dissolution of an ipiunc.
ton does not necessarily follow upon the
coming in of the enioined party with
an answer setting up Il denial OF all the
material allegations of the bill upon which
the injunction is issued. The court may
In It's discretion, refuse to dissolve the in
Junction, and continue it until the ina
hearing, II the circumstances would seem
TO demand this course. Especially should
the judge use this discretion and continu,
e. % injunction where fraud constitutes the
,Savamen OF the bill, or where by disso
luton IT appears that if the Injunction
/, shoul be dissolved the plaintiff therein
g sud lose all his benefits if upon hnal
nearing he might succeed High on mi.
vol. ., sec, 15CS). The valuation of III,
goods as fixed by the officer, making the
levy In his return upon the writ, IS not
conclusive as against the enioined party
On the tinal hearing, the jury having af
tirmed the good faith of appellant 8
purchase, he was entitled to the value of
the goods seized, and the judgment is re.
yersed and remanded. Watts, /.
Trinity County VS.. Polk County; from
Polk, county. BY act of March 4, 1875, the
legislature took from Trinity county and
attached TO Polk county certain land This
SUIT vas to recover the pro rata OF the in.
deafness OF appellant, claimed to be due by
the citizens. of the portion of land so at.
tacheCt on the grour vt Polk county has
assumed control oy, anne and refused
to levy a tax and colleu, same upon the
taxable property therein, to pay said
amount; and in the alternative appellant
sued to recover the territory and the taxes
collected on the same. Held, Section No. |
OF the act did not constitute a condition
precedent to the effect OF the act Upon the
approval OF the act, the territory became a
part of Polk county and there was no obliga
ton on Polk county TO pay said pro rata, and
the county court had no authority to levy
tax to pay same. There was no necessity
shown for running aud marking the lines,
but the court erred in rendering Judgment
that execution issue against Trinity county
Referred. Watts,j
Herndon ct al. vs. Heirs of Kuykendall;
from Harris county. This was direct
proceeding by an application to the dis.
trct court for writ OF oertiorari to the
county court, TO cause to be brought up the
record OF the proceedings in the county
court in the succession OF the estate OF A.
l.. kuykendall, deceased The petition
was filed by the ancestor OF the appellees.
The material allegations of the petition
were, that petition wHs the only heir OF
A. l.. kuykendall ,.u ais wife, both de-
ceased; that at their death they owed nc
debts, but owned certain lands Especially
setting them OUT; that upon the death OF
his ather, one Herndon, while petitioner was
yet small boy, procured from the land
office the patent to certain land which he
has since retained; that, for fraudulent pur.
pose, said Herdon pro 'ured one Sh'pman 70
apply for letters Of administration under d
false prctext that his (pctitioners) said
father was Indebted to him that said Ship.
man was iraudulently appointed admins.
traitor, filed an inventory IF the estate and
procured al order Of sale OF the land Of the
estate, which was never carried out, but af.
forwards said Herndon appeared M the
attorney OF said Shipman and consented
to his removal; that one Davis was induced
TO apply for letters of administration
which were obtained; that Davis obtained
an order OF sale and did sell the property
of the estate to Herndon at a very much
decreased value; that Herndon has
never paid for the land. Held
this being direct and not q
collsteral proceeding attacking the action
IN the court below, the principal that the
Jurisdiction being established, all presump.
tons must be made In favor OF what doe,
not appear, does not apply Us Tex, 1To
- Tex, 55T; 0 Tex, 800; Is Tex, 6iT)
Here the proceeding was direct, not colat.
eral, aud the party purchasing the land be.
ling the attorney o. one of the oil the admin
istrators, he and both the administrator
were brought into court. Fraudulent pur.
chases and sales were charged, and that the
administrators were Instruments with
which Herndon contaminated this II Id
Held, II could not be expected tina ,lal 81
could furnish ample proof TO the u ed
facts; for his case was founded on r~eh I've
allegations, which he was required 10 Sup.
port only by prima iacic evidence. Thu