The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1884-11-06
THE HIGHER COURTS.
CAUSES FINALLY DISPOSED OF,
Decision. of the Lower Courts Acted on
Alarmed, Reversed or Dismissed
Clear Logic OF Law-omis.
sion and tommi-si0D,
strrIlEMECoIrUr

conflict, shows that the property was
bought by Mrs, NJ, L., Stalker aud that
II was paid for with her separate funds
and that the deed was made to her, and
So stood of record when appellee bought
At the sale under execution against !,
a. Stalker, and that appellces had actual
notice Of her right before they pnr
chased. The purchase OF the property
by appellees was made under an
execution IN their own IaLor,
they paid for the property Other than hy
crediting the amount of ihrir hld ON
their Judgments, The conclusions ul
law found 10y the court In The main were
In accordance with the ru.,ugS ot the
court In Parker ct al. ys Gross e. Texas
Law Review, ~, and Mcl>NuUcv ~ ul.
vs.. Thorp ct nj, c. TcNu, Law Review,
3i2l, and the court incorrectly round tho
evidence insufficient To- show that the
property was paid with the separate
funds of Mrs, Stalker. Judgment re-
vcrsed aud rendered for appellants.
- Cnson ct nj. ". Chambers, from Morris
county; opinion hyStayton, ]. The owl
dence indlsputably shows that the note
D executed by ID 10 appellee, 10 secure
which the deed of trust sought To be
foreclosed in this suit was given, was
barred by limitation prior 10 appellants
purchase III tnt fult tlhbTlttu III tue
trust deed. While IL is true that the
subsequent renewal of the debt by q
new note given hv u 10 appellee, as be-
between them would operate renewal
of the mortgage given to secure IL Origl-
nally. vet such renewal could not affect
appellants right which accrued prior to
the wal and while the original debt
was barred by Limitation Hodge vs..
Taylor, - Texas, l9i; Riggs W.. Han
rick, 80 Texas. so; Ross VS.. Mitchell, -
Texas. l5i; Blackwell vs.. Barrett, ~
Texas, 32j;l. That appellants may have
taken the mule in payment OF debt due
them does not affect their right. The
judgement is reversed in so far aS IL
gives Judgment in favor of appellee
against appellants, with costs in The
court below, and in this court for APP
pellants. Reversed aud rendered.
Conner vs.. Conly;from Morris county.
Oral opinion by West, /. This suit was
brought by appellee against appellant
for breach of contract. Judgment in
Justices court for ten cents. Appeal to
the district court when judgement was
rendered by the court without the
intervention of jury of appellee for
$3.50. AS the court tried the case with
out jury and rendered Judgment on
the facts for appellee, we cannot reverse
the judgment AS the facts are sufficient
to sustain the judgment rendered.
Affirmed.
Campbell VS.. Smith ~ Choate: from
Cass county. Opinion by Willie, G. j.
The contract between McC. and c. was
admissible TO show the character of C's
claim to the property seized under the
writ of sequeStratiOr, and to contradict
his evidence rs to the nature of his title,
and the person from whom IL was de-
rived; also to show that he bought with
full notice of SIS prior mortgage upon
the identical property, and subject TO it.
The mortgage was admissible as link
in the chain of SIS right to have
the property seized to satisfy his lien.
The transfer to A. w. =. on the mort
gage was admitted in evidence without
objection. While not signed by his
partner j. c. S., it fully appears from
papers in evidence that he had no claim
cluded in it, and that they belonged to
defendant A. w. S. This was sufficient
to make good the transfer. The object
of making subsequent pur-
chaser party to the suit to foreclose
mortgage is to render to judgment in
the case exclusive Of his right in the
property. The failure to make him
party does not prevent plaintiff from
proceeding in another action to divest
the purchaser of his rights therein. In
such case, the suit Of foreclosure is not
conclusive ofthe subsequent purchasers
right. Affirmed.
Kaufman Il Runger VS.. Wicks; from
Robertson county. Opinion by Watts, ].
Adopted. Where damages are claimed
both for the wrongful and the mali
cious suing out a writ of attachment,the
two elements of damage ought each to
be presented in seperate court and the
jury should be required to specify the
amounts of exemplary damage found.
A ltigant who thus confuseS his case
should not be allowed to gain advantage
thereby. If there is no existing debt,
then it matters not how firmly defend
ants, at the time, might nave believed 1t
existed, the resort to the writ would be
wrongful. If defendants did honestly
believe the debt existed, and had raas-
enable and probable cause Tor the be-
lief, the fact that it did not exist would
not authorize the jury to infer malice on
appellants part. If it were malicious
and unfounded, but there was probable
cause for suing out the writ,
actual damage is recoverable. If a cred
itor should sue out an attachment
against his debtor on the ground that
the latter is about to dispose of his prop
erty to defraud creditors, when there
was no probable cause to induce that
belief, if other circumstances did not eX-
list repelling the presumption, the jury
might infer malace., II probapie cause
existed, malice could not be implied.
Even in the absence of probable cause,
the implication of malice might be re-
PEELED by facts and circumstances show
ing fair and legitimate purpose of the
creditor in the honest pursuit of what
he believed to be just claim. The YER
dict of the jury in this case showed a
larger verdict than could be claimed for
actual damages, and therefore, as the
facts did not warrant exemplary DIM
age, the judgment is rev ersed. Re-
versed and remanded.
Gottschalk VS.. Longinatti; from Mar
ion county. Opinion by Stayton. j. The
evidence shows that appellee neither
contracted the debts sued on in person
or by agent, and it fails to show that he
authorized any person to carry on bust
ness in his name so as to mislead any
one into crediting persons purporting to
be for appellee's benefit. To render one
liable for debts contracted by another,
such other person must nave
been his ag mt, or he must
have knowingly permitted such
other person so to hold himself out as
his agent. The evidence of appellants
agent, who sold goods to Dobbs, shows
that he knew of the connection OF the
was sought, with Dobbs, and yet no ef-
fort was made to get, his testimony; no
affidavit of such witness as to what he
would testify to if now trial was
granted was filed, nor was it shown that
such affidavit could not he procured.
The motion was therefore properly over
ruled. Affirmed.
Texas " Pacific Railway company VS..
Manuel Ga,cia, rom 4.1.rlaon county.
Opiniof Nv Stayton j. When the proof
shows that appellants agents had rec
ognized and allowed appellee and his
son and another minor to ride on the
drover's pass, which provided that