The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-12-31
THE HIGHER COURTS.
SUPREME COURT.

OF appeals was adopted, which report
suggested that there was no briefs ON
file for either party; that they be given
until this term to nile briefs, and as it
appears that no briefs have been fl led
~ required, the appeal will be dis
missed for want OF prosecution. Appeal
dismissed.
Missouri, Kansas IL Texas railroad
company VS.. Maytield; from Bexar
} county. Conclusions of Delaney, l.,
adopted. Suit for damages to cattle
shipped from Longview to Austin al
legged at 81 ,005. Citation issued and was
served on the local agent of the company
without copy of petition. The citation
stated the cause OF action to be a "suit
for damages" Motion to quash cita-
ton was made, but was not acted on
until the day of trial, when it was over
ruled. Judgment was rendered for $7S4.
Affirmed.
Hubbard, governor, VS.. Ward ct al.
from Travis county. Opinion by Watts,
J., adopted. In 1871 appelIees leased
from the governor of the state the peni-
Tertiary, convicts, etc., for term of
(iiteen) years, and at the same time eX-
ecuted and delivered to the governor
their bond, with security, obigating
themselves to faithful performance OF
the terms of the lease. In 1873, after ad-
ditional legislation was had upon the
subject, appellees executed and deliv-
cred to the governor another bond, with
security, with the same conditions as
the former. The bond of 1873 and lease
oil the basis of cause No. 1873 between
the same parties, and in that case tho
whole subject matter was litigated
and determined. Thi. suit was aV9 nst
appellees and their sureties on the bond
executed In 1911, and the trial resulted
in favor OF appellees for costs, the court
holding that by giving the last bond, the
obllgors In the first bond were released.
and from that Judgment this appeal was
taken ana perfected. But it seems that
as this case involves the same question
OF Indebtedness as the other. Neither
party has filed brief herein, and it seems
TO nave been retained upon the docket
to abide the decision in the other case.
ana as the other case has been affirmed
this appeal is dismissed. Appeal dis.
missed.
l.. u FL. Blum VS.. Rogers ct al, from
Hopkins county. Opinion by Delaney,
j., adopted. The main question in this
case arises ON tho homestead claim of
appellees. Rogers owned two acres of
land in block. On the eastern end
was his dwelling, with everything which
pertained to his home except his COW
lot, which was in the western part of
the block. the remainder of this west
ern acre he cut into three lots, and upon
each erected dwelling house with all
the conveniences ola family residence,
fencing each lot to Itself, and separating
the whole western acre from the east.
ern by an alley twenty feet wide. For
several years before the lew In this
case these houses were rented when
ever tenants could be found for them,
and were rarely vacant. Held; These
lots had ceased to be used as home
stead, and the fact that he occasionally
resorted to n cistern on one OF these lots
for water, with the permission of the ten
ant,did not alter the case (Medlinker w.
Downing, case very much similar.
Il Texas Law Review, III, also Eniuger
VS.. Catos, 81 Texas 590l
The fact that he may have built these
houses for the purpose of keeping board
ers, but quit hat business aud COM
menced that OF warehouse-keeper which
he still pursued, did not alter the case.
For when e abandoned the business of
boarding house keeper on the three
lots in question and started that OF ware
house-keeper on another lot, (Which WIS
thereby exempt, the three lots were net
exempt. The lot ON which he carried on
the business of Northumberland WIS
exempt Notwithstanding he had part
ner. II a man dies while In busiuessS
his place of business Is still a part of his
homestead, but II he abandons the bust
ness, the exemption is lost: and his wife
cannot insist that he still remain in bu-
siness to protect her homestead rights.
Reversed and remanded.
Keasler and Arnlale VS.. Texas & Pa
eific railway, from Marion county. Re-
port of Watts, j., adopted. Suit by
appellants TO recover the alleged value
OF ,22s cross ties alleged to have been
appropriated by appellee. Appellee an
swered by general demurrer and gem
eral denial. Jury trial aud verdict and
Judgment for appellee. On the trial APP
pellant introduced evidence tending to
show the appellee had taken the cross
ties as alleged; to rebut this, appellee
introduced evidence that the ties were
taken by the Construction company
and not by appellee as claimed. Held,
admissible. Such facts do not confess or
admit the taking by appellee and then
seek to avoid the effect thereof by show
ing new and Independent facts consti-
ting defense. II shows that appellee
did not take the ties as alleged. In re-
newing a judgment of tho court below
the appellate court Is confined to the
record, and except for iurisdictional
purposes will not consider eNtraneous
aihdavits on papers. Affirmed.
international & Groat North srn rail-
way VS.. Irvine; from Wood county.
A opinion by Watts, J., adopted, IN
an action for damages result.
"a ing from personal injuries, whore the
only allegation In the petition with re-
spect tn pain aud suffering occasionod
n by the INJURIES Is, shat in consequences
Of said Injuries he was confined TO his
bed, under treatment Of physicians, for
d fye or six weeks; that he suffered pain
n fully from aatd unnpda - IN cnnrt
8 erred IN charging the jury in estimat-
ing damages to consider physical and
mental PAIN and suffering occasioned
by the injury. Reversed and remanded.
Western Union Telegraph company
VS.. Brown; nom Tarrant county. 0pin-
Ion by Delanv, J., adopted. The charac-
yer OF cause of action u determined
both by the prayer for relief and the
iaots set forth as the basis of recovery,
III these are substantially the
same In both petitions the latter does not
set up new cause of action, although
nmay change the form OF the prayer
and ask a longer measure of damages.
Inc evidence In this case does not sup
port the verdict. Reversed and re-
manded.
Houston & Texas Central railway VS..
conrad; from Limestone county. 0pin-
Ion by S'ayton, J. Appellee was injured
by small piece OF coal chisel, on which
ne was striking with spike
maui, flying off and striking
him In the eye, The chisel
was not In any way defective, but any
chisel will frequently batter and chips
ny off. Appellee knew the danger TO
which he was exposed. It was the
usual custom to have the work In which
appellee was engaged, done at the shons
and not by section hands. IL appellee
mad used larger maui the danger
would not have been 80 great, and he
Knew this. Held, the evidence does not
support a verdict against appellant,