Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-06-29

answer fled after rendition, unless |
Tor causes requiring IL to be set aside. |
IL was within the discretion OF the |
trial court to permit the notice to be |
Withdrawn from the record TO enable |
the person who made the return to |
| correct an informality. Arts. 1898 |
and l2S9, II. s, conferred ample
| authority for the COURTS action in
| this case, and service having been
! actually made on defendant 1t was not
void because OF failure to have au afli-
davtt attached to the notice setting
| forth required facts, and the de-
| PENDANT was bound to take no.
! tice of the return that was made
and the order of the court allowing
notice to be withdrawn. See Freeman
on Judg. sec. l26. The atfidavits filed
do not show that the return was not
attached to the notice. But the statute
OH the subject Is directory, and the
| omission to attach would not, Of itself,
be ground to set aside the judgment.
The return could be amended, 3 Tex
26l. Affidavits showing no Irregular
| ity as 10 time and manner OF asking
and rendering the Judgment by default,
| 1t was not error to render IL other than
| appearance day. Affirmed.
Price vs. Chadwick, from William
son county. This was question OF
| proper boundaries In an action OF tres
pass TO try title The evidence was
sufficient to support the conclusions OF
the court. The question was the identi-
| ty of lines aud corners of surveys to
| fix boundaries in dispute, and the
relative value of calls, or the
superiority TO be given one class of
calls over ano her, Is not involved. I'm
| this case ciTcumsiantial evidence bad
to be resorted TO trace the footsteps OF
! the surveyors who made the surveys,
and was sufficient TO maintain the
| judgment. 80 Tex. 269; 81 Tex. 6l2.
Judgment rendered on conflicting
evidence, TO be revisable by the appel.
late court on account Of the evidence,
| must appear to be without sufficient
tsupporting evidence, or so decidedly
against the preponderance OF the evil
deuce as to show that the jury did not
duly consider it. 81 Tex, 1893. AT
firmed.
The International & Great Northern
Railway va. Underwood, from BeXar
county. The right OF defendant in
damage suit for injuries TO have a
committee of competent physicians
appointed to examine the injured par
ty and testify has b en- upheld az
Iowa 1851, but will not be recognized
unless the motion for said committee
shows a necessity for the ends of JUS
tice When the petition claims
exemplary damages, and there
IL a question whether
the evidence shows such facts as would
, sustain such claim, 3 charge should
be given upon that subject unless In
; consequence of an oral statement
made in open court by the plsintiff OF
f his counsel in court by q cherge with
/ draws such claim entirely from the
} Jury. The issues between the parties
+ are made by the pleadlngs, and when
q claim and issue is thus presented
correct practice requires that, If de
sired, 1t must be withdrawn in the
same way. Though the injuries II
/ this case were serious, the verdict fol
SIS, 900 actual damages was excessive
As to the degree of care incumben
: on the appellant, and as 10 wha
would constitute negligence, the courl
{ CT arged as follows 1t is the duty o
2 the defendant to exercise proper care
: t. transport its passengers safely and
E the want OF such care Is deemed
3 in law negligence, for whlci
, the defendant is liable
t Held, error, because IFS effect was t
make the common carrier an insurer
. Reversed and remanded,
: Piggott VS.. SchIamm u Co., from
Kinney county. The attachment Law
r authorizes the seizure of 80 much 0
E the property of the defendant as shel
, be sufficient to satisfy the demand o
0 the plaintiff and the probable costs o
g suit Art. $50 of II S. provides that
q plaintiff RECEIVERS in the suit the attach
ment lien shall be foreclosed as in cas-
3 OF other liens. Art. Isl provides tina
g when personal property has beei
n levied on the judgment shall also b
= against the defendant and his suretit
on his replevy bond for the amount
\, Judgment, interest and costs, or 10
d the value OF the property replevie'
o aud interest. IL Is settled that IN
| same rule applicable to mortgage AM
: other like liens applies to the foreolo'
q ure OF attachment liens, and that u
n right to decree foreclosure and sal
q OF the property attached for the Intel
= est and costs accruing up to the date
q Judgment, IL clear and unquestionaol'
n III a failing debtor, intending 70 tram
}. fer and assign his property for the beI
4 EFT of his creditors, has made vail
/. transfer and assignment to an a
signee, or is in the act Of doing so,
a would be in fraud Of the law OF assign
y ments to allow a creditor to issue a
n attachment before 1t was practicable
IL perhaps, for the assignee to reach "a
q. county clerks office and cause IN
n deed 10 be filed FOR record or be r.
N corded. The act OF recording a dee
l. of assignment is not necessary to a.
le termine the vitality and power OF IN
a deed to invest the assignee with ~
2: to the property as against attachin
20 creditors. The object Of promptly. r
., cording the deed is TO give netice OF !
se contents, but as between those WI
81 are creditors at the time when the q
g. Segment is made, the trust accepte
% and VIGOROUSLY acted upon by the .
" signee, the reversing OF II cannot !
o. taken as test OF the efficiency OF u
ee deed. On the question OF fraudulel
10 intent TO defeat, delay or defral
le creditors as applied TO this case, u
cases of Blum and Welborne, 5o Tel