Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-14

balance of such allowance, but had
abandoned same. Held, that 1t was
competent for appellee TO so abandon
her claim against the estate, and IL the
facts stated be taken as true, they
worked such abandonment and cannot
now be asserted against the estate, but
, is state demand. See 81 Texas, 42i,
for definition of abandonment. Ex-
ceptions to the appellants amended
pleadiugs were wrongfully sustained
Reversed and remanded upon the re-
port Of Walker, commissioner.
Bradford vs. Taylor, from William
son county. The plaintiff below, ap.
pellee, having averred by amended pc
tition, under oath, that the firm of
Bradford & Jordan was dissolved
March H. 1888, and that by the terms
OF dissolution had authority to settle
up the Indebtedness of the firm, and
under such authority drew the checks
declared upon, the answer below,
though denying the partnership or au.
thority of J, not being under oath, did
not, in view of plaintiffs declarations,
preclude the admission of the checks
in evidence. The remaining objec-
ton urged is that the evidence did not
sustain the verdict. 1t is well taken,
| it being incumbent on the appellee to
| prove that at the request OF Bradford
& Jordan, he so paid the money on the
checks set up in the petition. See .
Texas, 237, for rule. Reversed and re-
manded. Stayton, j.
Newton ct 81. vs.. Newton, from Will
son county. In suit in county court
sitting in probate matters it has been
held 30 Tex ,S27, that party contest
ing an application may be required by
the applicant to state his interest in
the estate, but this must be done by
precise exception taken to his appear
ance in the case. This exception must
be taken in limine, and can form no
part of the inquiry after an issue has
been made on the merits. AS that
matter is heard de novo on appeal,
in district court, the executor
or administrator may then require
applicant to PROFOUND his interest,
and if he does this he may contest it.
In the district court on appeal the par
ties occupy their original relations in
the county court. On motion to dis
miss, the transcript from the county
court alone could be looked to. On eX-
ception to the pleading rs not'showing
right to contest, evidence might be
heard and the transcript would not be
looked to except to show the state of
pleadings, and not then if they had
been substituted in the district court.
1t was held in the case cited that
party in interest in such cases could
appeal though he did not appear in
the lower court. Motion to dismiss ar
peal was not the proper proceeding in
this case. Reversed and remanded.
Willie, G. J.
State of Texas VS.. Wells ct al, from
Travis county. This was suit by the
state on the bond of Wells as tax col
lector OF Van Xandt county. The sure
ties of Wells admitted the execution
of the bond, but averred that they
moved the court in 1877 to relieve
them from the bond; that the court
did so, and ordered new bond, but
that by oversight the order was not
entered on the minutes of the court, of
| which fact they were ignorant until
TINS suit was instituted, when the
order to such effect was entered nunc
| pro tune. They denied that Wells
was in default before they withdrew
from his bond in 1877. At
ter an exhaustive consideration of the
act of August II, 1876, and in connec-
|
passed in the same month, upon the
same subject, the court concludes that
under the law in force, the sureties
could only be discharged when a new
bond was shown to have been given
and approved, the relief from liability
dating only from approval of such new
bond. Reversed and judgment rem
dered against both principal and sure
ties for the amount sued for. Report
ny Watts, commissioner. Adopted.
The State of Texas VS.. Wells ct al.
from Travis county. This suit like that
Oh same caption, supra, was brought
by the state upon the bond of an al
leged deiaulting tax collector. On the
trlai below Judgment was rendered for
defendants upon the ground that the
bond was insufficient and of no effect.
Held That the Judgment was correct.
Our law requires that bonds of this
character shall be approved not only
ny the commissioners courts hut rs
well by the state comptroller. In this
!, case the bond was rejected by the
comptroller. 1t follows that the bond
: was materially defective and not such
: as would support a judgment. AZ
hrmed upon opinion of Watts, COM
missioner
houston ~ Texas Central Railroad
: VS.. Ida M. Kinney, from Graysou
county. Objection that the verdict i,
, not supported by the evidence is moi
tenable, for though there is a conflict
the record brings up ample evidence t.
, sustain 1t. The court charged 'If yo,
believe from the evidence that plaintiff
came upon defendants track at point
set apart exclusively for its own use
: not irequented by strangers or other,
A not IN the roads employ, and attempt
: ed to cross Immediately in front o.
f a moving train, and so near that tb,
person In charge could not stop tn,
Q traln in time to prevent tn,
: injury, and further that such persor
!. IN charge kept a diligent lookout, anc
because of peculiar surroundings could
: not discern plaintiff OF find out tina
she intended to cross the track in tim,
/ TO prevent the injury. and that a,
/. soon as he discovered plaintiff he die
all he could to prevent the injury. anf
q you also believe that the rate of speet
' OF the engine would not have beer
dangerous under ordinary condition o.
!, the yard, but was rendered so by ne
a cniiar surroundings of plaintiff, yo,
: Will find for defendant.n There was
conflict IN the evidence as to the rat,
OF speed mt which the train was RIM
4 nlng. The charge was not error. IN,
Judgment Is affirmed. West j.
\