The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-10-30
srrREME COURT.

SUPREME COURT,
Sharp ct al. vs.. Schmidt 4 Zeigler;
from Anderson county. Opinion by
Willie, G. !. A petition for Injunction
must state the character of the defense
which the plaintiff in injunction alleges
he can establish against tho judgment
enioined, and it is fatal to the
petition for INJUNCTION that the mate
rial allegations thereof had been
! denied in tho original answer. Not
withstanding An illegal writ or service
of process, a court Of equity will not set
aside judgment until ii appears that
the result will be different from that
already reached. The court did not err
in dissolying the injunction when
plaintiff refused to amend, where
special demurrer was sustained to the
| petition because IL simply stated that
! the plaintiff had good defense to the
action in which the judgment was OBJ
tanned. Sureties upon an Injunction
bond are practically parties 10 the suit,
and whore the defendants in their
original answer claimed Judgment
against both principal and suretios for
a greater amount than 10
| per cent damages allowed for
delay, (Rev. Stats, art. 2sgi) and
! attempted 10 set up facts emitting them
| To such n judgment, which WAS imper-
I feet, II was not necessary to serve the
sureties with notice of the amended an
swer, which supplied the defects and
added facts occurring since the origi-
nal was filed. The fact that the amend
m0nt asked for service on tho sureties
makes no difference. Assignments of
or or relating to the admission of evi-
dence must rest upon the objections
made In the court below; no now Objec-
tons can be raised for the first time i'm
! this court, Affirmed.
Houston & Texas Central Railway w
/ Jackson, from Limestone county. Opin-
ion by Stayton, j. The terms of the stat
ute Art. 2S3, Rev. Stats. arc very broad
and give the right to recover damages
on account Of tho common carriers do.
fault for every injury which, in n legal
sense, can he said to be caused by the
default. The allowance of interest by
way Of damages has not, in this state,
| been confined to those cases in which in
torost IN expressly given by statute.
| The rule laid down in Calyitt vs.. Me-
Faddin, us Texas, 324). was varied some
what in Masterson vs.. Gudlett, (46 Texas,
| lO3) hut right % interest for failure to
deliver was recognized. SEQ also Hill
brewer Va. Douglas, as Texas, 1860 right
| To Interest has roeu allowed on breach Of
| warranty In tho sale of land, aud the
same rule prevails on breach of war
ranty in the sale Of chattols unless va
ried by special circumstances. Interest
. hus also been allowed for conversion or
rCpntIou ofmonoy, Quoting from Fow-
Ser ", Davenport, (2l Texas, Gl0. Wolf
VS. Lacy, 60 Texas, $500. Sedgwick
sutherland and Field on damages, the
court concludes that where goods are
%. lined IN transportation hy carrier,
which were In he converted into MONEY ,
the carrier IL liable for legal interest by
way Of damages. Reversed and ron
derod for appellee for N,lg30l with S per
cent. interest from Oct. 3, lNSl.
International n Great Northern Rail
way vs., Smith, from Smith county.
Opinion by Willie, G. J. The statement
OF facts being stricken out, errors do,
pending for their support on evidence
introduced, cannot be considered. The
petition alleged that deceased, for whose
death damages are sought, was deaf
and that at the time Of tho accident ht
was walking upon the railroad track ol
defendant, which had been laid upon
and along public street In tho city oi
. Tyler; that this street was between the
residence and place Of business Of do.
ceased and II was necessary for him Ia
cross and make uso of IL in going from
the one TO the other; that nj the time tho
accident occurred IL was about dark; that
train consisting Of an engine and ton.
der aud box car before aud one behind
them, was running along the track In
the direction of deceased and following
himi that this train was being backed
and was going at greater rate than was
allowed by the laws NJ the city OF Tyler;
that thoro were no lights upon the train,
ana no signals were given to warn de-
ceased OF his peril; that being ignorant
~ tho approach OF tho train and using
all necessary procaution ON his part, lie
was run over by the train and instantly
killed; that deceased did not hear tho
approach Of the train, aud that although
his deafness was well known to the
very agents and employees of tho com.
pany who were running the train, and
although they knew that deceased was
In tho way OF the train and unable To
hear or know of its approach, they con-
TN uod 10 run at the same high rate OF
speed until they ran over and killed
him. Held: These allegations are sutli-
ciont IN law 10 warrant n recovery, The
petition not claiming exemplary
charges, the court was not required "a
distinguish between that character of
damages and compensatory damages.
A special exception to ihe petition was
necessary If defendant desired 10 have
tne clalm Tor damages more spOcitlcly
alleged. Affirmed.
Griman ct al, VS.. Dean, from Wood
county. Opinion by Willie, G. /. Where
thoro IN but one defense Hot up by q
party, and there was no proof tending
to prove this defense, the court may
charge the jury TO lind for plaintiff,
The defense was an eStoppel, but defon.
dants proof lacked an essential element
which was sufficient to make IL wholly
worthless to establish an equitable es
toppol II shows no statement or con,
duct of w, the common source, TO in.
duco appellant 10 believe no had con.
Neyod title TO appellants immediate
vendor or any ono else. w spoke VERY
cautiously, and connected the Statement,
that no thought the tito was good with
the qualification that ho had no memo
randa whereby to refresh his memory
that no would examine when no wen
homo aud see N he had memoranda b,
which he could give the true status O
the case. Appellant did not wait fol
further confirmation, but went ON anc
made the purchase. Affirmed.
Stewart vs.. Houston a Texas Contra
Hallway, from Grayson county. Upin