Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-04


one could net independently
maintain an action for damages, but
must make his copwner patty
plaintiff. or IL the co-owntr refuse, a
party defendant, that all interests may
be adjudicated. Reversed and re-
mnnded.l Hurt, j.
Texas & Pacific Railway vs. Hill &
Beauchamp, from fannin county. II
the right OF action he in one person
only, another cannot be joined with
him as plaintiff. One joint owner
cannot alone maintain suitto recover
his individual interest in property de-
stroyed, aud when the right of action
is joint, the suit must he brought by
ali who are entitled TO redress. % Tex,
32S 1t appears that q. was the ten.
ant of b. on the land wherein the crops
destroyed grew, and that the rental
contract gave B. interest in the crop.
Held, sufficient to show joint owner
ship in the crop destroyed the crop
slill being on the premises when de-
stroyed. Further, that G.. having
rented the land from Is. for the next
year he had such interest In the land
as to be a proper party jointly with b.
In suit for recovery Of damages to the
land. 1t is The province of the jury to
divide upon conflict of evidence.
Affirmed. Wilson, j.
e., III. u s. a. Railway vs. Jackson,
from Caldwell county. Appellee hav-
ing recovered a judgment against the
appellant In the Justices court, the
appellant removed the cause 10 the
county court by certiorari. The Ger.
tiorari was dismissed in the latter
court. Held, that the petition for GER
tiorari being defective, the action of
the court was correct. The petition
fails TO disclose the evidence upon
which the judgment Of the Justice of
the peace was founded. The writ of
ceriiorari not being matter of right,
n petition therefor is not sufficient If
II asserts mere conclusions and gem
eral assertions as to the effect of the
evidence. 1t must set forth all the
material facts In evidence before the
court rendering the judgment. Mere
conclusions as to the effect of evidence,
and none of the evidence having been
set forth in the petition the certiorari
was properly dismissed. Affirmed.
Wilson, j.
Shaw VS.. Adams ct al, error from
Dallas county. IN the absence of bill
OF exceptions, refusal Of continuance
will not be revised. Incorrect state
ment of the names Of plaintiffs in
petition is not vulnerabeto special ex-
ception, but TO plea in abatement only.
u is sufficient IN suit for property il
plaintiff alleges that he Is The owner.
He need not allege the source of his
ownership, or that he paid valuable
consideration for 1t. Having stated
the value Of each article it was not
necessary that the petition state the
aggregate value. To enlitle plaintiff
to recover in this suit II was incumbent
on him to prove title to the identical
property described in the petition, and
To show that defendant had possession
Of said Identical property. This the
evidence does not do, and dos not
support the verdict. /, was not error
TO permit witness to testify that he
wrote the deed of trust used in evil
dence. Reversed and relnanded. Will
son j.
Williams. alias Pyburn, VS.. State,
from Colorado county. The appellant
in this case was convicted for the rob.
berry of one Jones, and his punish
ment was assessed at Term of thirty
years in the penitentiary. The one
question involved in this appeal IL the
correctness of the action of the court i'm
refusing u continuance i'm order to pro.
duce an absent witness. TO entitle a
continuance upon such ground, the
application must show that the de.
fcndant exercised proper diligence to
secure the witness in the trial. A
total want of diligence, unexcused. is
apparent from the record. Again. it
must appear that the desired testi-
mony Is probably true. On the con-
trary, that set out in the application
appears to be not probably true. The
continuance was properly refused.
Affirmed.
Greenwood VS.. State, from Cald-
well county. The Indictment charged
and the verdict found the appellant
guilty of an assault with the intent to
murder one Grandson Robertson, and
term of two years in the penitentiary
was assessed against him. The charge
Is complained Of that 1t does not define
| manslaughter. The court Is not re.
quired to do so in the absence of proof
tending to show that had death re.
suited The homicide would have been
manslhughter. There was no excep.
ton taken to the charge us given, and
IL presents no fundamental error. New
trial was properly refused because the
newly discovered evidence set up i'm
The motion was not material and no
diligence TO obtain the same on trial is
shown. Affirmed,
Minis VS.. State, from Caldwell coun-
ty. The theft of a horse. the property
OF William Hill, was the oiiense
charged in the Indictment, and Of
which the appellant was convicted
and awarded term OF ten years in the
penitentiary. The objection that lie
verdict of the jury Is contrary to the
evidence is not supported by the
record. The court Is not required In
charge upon the law of circllmstantinl
evidence, when the prosecution is moi
relying solely upon that character of
evidence TO convict. Otherwise the
charge OF the comrt was sufficient. and
there was an abundance of circum.
stantial evidence TO sustain the verdict
Affirmed.
Neal vs. State and Brawlie va. S,aia
from Coleman county. Tie conyic'
lions In each of thee cases was for the
THEFT Of horses. From these c0nvlc.
lions the appellants appealed to this
, court. Pending the decision of thes.
appeals each succeeded In elieclino
their escape from the iail In which
+ they Were confined. The motion nj
, The assistant Encouragement To dis.
miss the appeal, leaving the convic
tlon below in full force and effect, 4.
supported by the affidavit OF the sher
iif having the defendants in custod,
L l.A H.. n. n