Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-14
THE HIGH COURTS.
Syllabus Of Opinions Rendered at the
Austin Term,

jackson, Reporter OF the Appellate Court
OF Texas.
SUPREME COURT.
Burton vs.. Galveston, Henderson
San Antonio Railway, from Bexa
county, The one party having file,
interrogatories to which the other flee
i crosses, and the first party falling Il
take out commission, II was no objec
ton to the deposition that the othel
party, using the same HETEROGENEOUS
sued out commission and took the dep
osition. Nor is the objection tenabl.
that the officer who took the deposi
ton had neither an Office in the same
room with the attorney for the defend
ant, nor that he was attorney for de
PENDANT in some other cases, il
not appearing that said officer was In
terested in the cause. The question
turned upon the relationship of con-
tractors with the railway. If the con.
tract was that the railway should fur
nish trains, etc., manned and run by
men of the railways own selection, to
be paid by it, and subject to he dis
charged by IL alone, though to be used
by contractors In transportation of ma
terial, etc, and according to directions
of contractors, and contractors are TO
be considered servants of the company.
A requested charge given presenting
the converse of this rule, or authoriz-
ing the Jury to infer the converse, was
error Reversed and remanded. Stay
ton, j.
Heating ct al. vs. Vaughn, from
Hays county. The act of March "a,
| 1879, provides in terms that when an
assignee refuses to execute trust. the
county judge has power to remove him
and appoint another. Resignation of
the assignee is tantamouut to refusal
The assignment deed in this case con-
veyed certain designated property
without in terms declaring 1t be all
conveyed save exemptions. The in
ventory, however, made part of the
deed, declared unequivocaliy that the
property named was all of the as
signor's estate. Held, that taken to-
gether these papers form sufficient
compliance with section . of the act
named. 1t is immaterial that the
assignor did not reserve to him
self any surplus arising after the salts
faction of the trust-the statute does
that. Under assignments of this char
acter non-consenting creditors cannot
take at all, but may garnishee the as
signee for any surplus over, after exc
cution of the trust as to consenting
creditors. Where such course is not
pursued by non-consenting creditors,
under section 10 of the act any surplus
would be paid into the district court,
to he paid under its decree. The orig
inal order of the appointment of the
assignee, and his official bond, was suf-
ficent proof of appointment. An as
signment under the act stated Is in no
wise an insolvent law, but is only de-
signed to protect creditors in the adj
ministratlGn of an insolvent's estate.
Affirmed. StaytOn, j.
Oliver VS.. Mahoney. from McI.en
nan county. The controversy in this
case involves the true locations of the
lines of survey, the appellant insisting
that the east line of AS survey should
be carried eastwardly to the west line
of the b survey, because the latter Is
the older, and the field notes of the
former call for the latter's west line.
Such doctrine applies only to cases
wherein the lines sought have been
made on the ground, or If made, have
been lost-not facts in the case. The
line here had been properly estab.
lished on the ground. See 30 Texas,
25s, for proper rule in such case. AT
ilrmed on report of Delaney, commits.
sioner
Tieman VS.. Baker, from Guadalupe
county. The decision of a court OF
competent jurisdiction is conclusive
not only as to the subject matter deter.
mined, but as to every other matter
which the parties might have Irrigated
in the case, and which they might hav,
had decided. Otherwise stated. tn,
plea of res adjudicata applies to point.
not only upon which the court was re
quired to adjudicate, but to every poin
which properly belonged to the subiec
OF litigation, and which, by exercise o
proper diligence, might have beer
brought forward. Such doctrine ha
been applied to cases in which TIL
wife was a party to the previou
suit, and held her bound MS any othe
litigant, the only exception beint
where the subject-matters involved il
the two suits, though of the same ma
ture, Were in fact different. Such ey
ception, though involved, does not al
ply to this case. 1t is apparent frof
the pleadings and facts in this case
that, If in fact, the land was the seps
rate property of the wife, and til
homestead at the time of ID. Is purchas.
the defense of homestead might hay
been pleaded and adjudicated in tn
former suit, and hence that question
made for the first time in this subs,
quent proceeding, comes too late. Al
iirmed. Willie, e. j.
Galveston, Harrisburg & San Al
, tonic Railway VIZ. Williams, froI
, Bexar county. 1t Is rule rigidly ell
, forced IN this court that statement ,
: lacts filed after adjournment of cour
VIII not be considered for any purpos
n the absence of an order OF court a
lowing ten days in which to file /
! When therefore, there are no assign
ments of error which can be co,
sidered without q statement of fact.
Il remains only for the court to ai,irr
the judgment. Judgment affirmed
Willie, G. j.
Aycock ys. Kimbrough, from Fal
county. The proposition as stated b
the court upon its finding as To Law
: was, that where two are tenants /
: common of separate tracts of land.
creditor cannot sell the undivided Il
terest of one In one of the tracts n,
der execution. But this case ia this
A creditor Is attempting to sell Ia
undivided interest in one tract of Ian
owned by co-tenant, who owns tins
!. and several other tracts in connectio
!. with other cO-tenants. This. n
held, can be done. The finding of IN
court below on this question of la,
r was therefore error. Reversed and r,
manaed upon report OF Delaney, con