Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-03-15

! trial courts, which eAefclseu coy
itude of discretion, to aware ny
trial. In this case such new u i;
should have been granted, necause W.
dence could not more clearly ltiaioa.e
that the injuries sustained uld nov
arise from any character Of negligence
on the part of appellants. reversed
and reminded. Stayton j.
Collins county VS.. Roberts CT al,
from Collin county. SUIT III lh's
case was instituted by the appellees 10
to restrain the court OF conlniis-
sioners from opening up road through
the land of the appellees. The iirst
error assigned by appellant attacks me
Jurisdiction of the district court over
such action. But it has been hereto
fore held that such Jurisdiction attaches
aud that view is adhered to. Denur-
rer arraigns the petition as showing
an insufficient cause OF action, DE-
cause it shows deley of two years IN
asserting the claim for damages. Inc
petition, however, sufficiently shows
excuse for laches, and the demurrer
was properly overruled. Assignments
of error, when too general to point out
specifically the errors complained OF,
will not be considered. Affirmed.
Delaney, j. Adopted.
Mcdaniel vs.. Needham, from Pan
ola county.-This was suit for dam
ages arising out of a criminal prosecu'
ton for unlawfully cutting timber,
brought by the appellee against the APP
reliant. over the objections of appel
liant, the court admitted in evidence
power of attorney which was ac-
knowledged as follows: PERSONALLY
appeared before the undersigned au-
thority & s. whose name appears
to the within power of attorney, and
in my presence signed, sealed, and de-
livered the same for The uses and pur-
poses therein contained. Given under
my hand and seal of office" etc.
Held, that being an unrecorded aud
unauthenticated instrument, it should
not have been received in evidence.
The title offered in evidence rs n iusti-
Guation for the wrong tending to show
the eXisten le of probable cause for the
defendant to believe himself to be the
possessor of the timber, was compe-
tent evidence, and should have been
admitted. Reversed and remanded.
Delaney, j. Adopted,
Hutchins vs.. Lockett, from johnson
county. upon the questions
raised on this appeal, it has been here
toiore held in this same case Cd Tex
as) "That all matters of defense must
be filed in due order of pleading which
requires all matters of law to be plead
ed in advance of pleas to the merits;
that u Judgment may be impeached
upon the ground of fraud; that where
defendant claimed under Il Judgment
rendered in salt for specific perform
auce in which the purchase money
rendered in open court for land
sued for, had been Withdrawn after
judgment, that the withdrawal of the
money operated a. fraud upon the
Judgment and related back TO its rem
dition and nullltied the whole. a
Judgment cannot be good in part and
bad in part; it must be either valid or
void in whole and where fraud attaches
only to part of a judgment the,whole
is q nuIlityn This doctrine is here re-
asserted. But upon the assignment
that the court erred in rendering judy
ment for defendant, the judgment
must be reversed as the evidence sus.
taius the assignment Reversed and
remanded. Delany, commissioner
Adopted.
Texas g. st Louis railway vs.. Rob
ards ct al. from Smith county.-'rhe
rules of law controlling actions of this
character can be stated without stating
the case. They are: |. Where n
married woman in connection with
her husband, performs her part of the
contract and the other party tn the
contract has received the benefit of
the performance, such other party
cannot inland h.r nn
toppel TO her suit >. a rail-
road company can contract to main
tain Il station mt any point along its
line providing such contract does not
prohibit it from establishing other Ste
he demanded to public eXigencies.
}. a contract by n company which
has opened II station on its line of rail-
way, to induce one, by promise of the
c)mpany's patronage, To open a hotel
at such station, and 10 dissuade others
from establishing opposition enter
prises, is valid. ]. Where one party
to contract has performed and con
tlnues u perform tue conditions OF II
contract, it would be error 10 entertain
the plea Of ultra rireS until the failure
of The other party TO the contract is
shown. These rules We're properly OBJ
served below. Rehearing refused and
judgment affirmed.
hammers vs.. GreenleVe. Black *
Co., from Smith county.-On rehear-
lng.-ln order To authorize the court to
set aside sale of property made by
debtor, for fraud, it is incumbent on
The creditor to show that the debtor
acted in fraud and in bad faith, of
which fraud and bad faith the pur-
chaser was ignorant nj the time of the
SAFE. The evidence in this case fails
TO show so much, but ON the contrary
shows that the purchaser paid valua-
uie consideration, and that so far as
the intent OF the debtor was concerned
tne sac was not made to hinder and
aelay creditors. That there was "A
proNlso coupled with the transaction
TO fe,tstabiish the debtor in business,
would not of itself render The convey
ahce fraudulent and void, iuasmuch IA
me creditors would have 10 be satisfied
before the debtor could receive any
oeneilt nom this promise. In any
view To be taken of the evidence 1t does
nor support The Judgment. Reversed
and remanded.
Tom aud wife VS.. Wolhoefl, y Of al
rom GONZALES county Where cDu,
tract ior the sale of lands is execu,ory.
anu deianit in the payment of the pur
ciiase money is made, vendor has |
olninarlly the right to Ne. !
sciha the contract, recover the land
anu convey to another party. But |
parties dealing with the vendee before
ne mas performed his contract, with
h SUI Of conflicting rights cannot,
oau'nariiy, be heard to complain, il by
,r0s, OF yendee's default, the con-