The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-04-29
THE HIGHER COURTS.
REVERSED OR AFFIRMED CASES.
Findings of the Supreme and Appellate
Magistrates-C Civil and Criminal
specimens Legal Logic by
Those Who understand.
SUPREME COUNT.

SUPREME COURT.
E. Eppstein Il Co. VS.. Holmes, Grain
OF al, from Lamar county; Willie c. j. |
Where the proper service of citation in
error'was made upon A, s., necessary
party to the writ Of error, but was di-
rected to the "sheriii or any constable
of Grayson county," and was served by
the sheriff of Lamar county, the cause
is prematurely in this court and must
be stricken from the docket.
The assignees Of judgment below
are not proper parties to tho writ of or
ror; they would be bound fully by any
decree rendered in the cause without be-
ing parties to the suit. (Harle VS.. Lang
don's heirs, GO Texas 555.)
The writ of error SUED out October 3,
1883, was abandoned by the plaintiff in
error. Had this abandonment and the
subsequent issuance of the present writ
delayed the consideration of tho cause
i'll this court, 1t might have furnished
reasons for sustaining this motion TO
dismiss. But the first writ OF error was
not perfected in time to be returnable TO
the April term, 1874, of this court. The
bond necessary to give this court juris-
diction was not filed in the court below
70 days before the day of the cali of the
assignment TO which the case belonged
Hence, that writ, like the present, was
returnable to this term, and tho parties
would not have been entitled TO CON
| sideration of this cause under that writ
mt an earlier day than under tho last ono
sued out. The action of plaintiff in
error did not prejudice tho rights OF
their adversaries TO an early decision of
the case, and this ground of the motion
is not maintainable. Writ of error dis
missed.
Sanger Bros. VS.. overmier and
| O'Neil, from Parker county. Willie, G.
!. On September %, lSSl,J. y. Oyormier
and IL. Il. O'Neil were merchants and
partners doing business in Parker
county, and on that day bought goods
to the value of 81 900 from Sanger Bros,
payable December %, 1881. October %,
1881, Sanger Bros. brought suit in Par
ker county upon the account incurred
for these goods, alleging that defendants
resided in that county, and asked and
obtained an attachment which was lev
led upon the goods OF Overmier and
O'Neil. Defendants did not reside in
Parker, but in Van Zandt county when
tho suit was brought.
April 2, 1882, Oyermier, through his at
torney, filed general denial TO tho ac-
ton. Tho partnership between Over
mier and O'Niel was dissolved long pre-
yious to the filing Of this last answer.
IL. ~ III, Blum and Marx a. Kempner
having obtained valid attachments In
other counties, subsequent in date to
that OF Sanger Bros, had them levied
upon the property seized under the lat
ter and interviewed in this suit, claiming
that tho attachment Of Sanger Bros.
was void, the district court Of Parker
county having no jurisdiction of the
cause, and that their liens should be sat
isiied out of the proceeds of the attached
property.
After the conclusion of tho evidence
and argument the parties agreed to sub
init the questions OF fact raised by
O'NeiPs plea in abatement to the jury,
for finding thereon, and after their
verdict the court should decide all
other questions, as we'll of fact as OF
law, Tho verdict of the Jury was that
the court had no Jurisdiction, where
upon the court rendered Judgment for
defendants as against Sanger Bros, re-
leasing their lien upon the property
attached, and foreclosed tho subsequent
attachment liens of the intervenors.
Held: Although the partnership be-
tween Overmier and 0'Neil was dis.
solved previous TO tho formers appear.
ance and defence filed in this action,
yet the partnership debts had not all
been paid, the debts of plaintiff and in
toryenors still being outstanding
against the firm, and, therefore,s the
entry of an appearance and the filing OF
pleasto the action by one member OF
the firm brought the firm into court for
the purposes OF an adjudication, 80 far
rs the common property of the partner.
ship is concerned. That was sufficient
for the purposes of the attachment
which was levied on partnership prop.
erty alone. CT. Il ST. l.. II. II. VS.. Nc.
Canghey; 4 Texas Law Review DOB;
Alexander VS., Sterne; IL Texas, 1887.
As the individual assets of OiNelI
could not be reached under a Judgment
rendered upon service ON Oyermiei
alone, his plea In abatement becamC
useless aftor the latter's answer wa,
filed. The verdict of the jury upon that
plea could not find, neither could tht
court adjudge upon its verdict, that Il
had no Jurisdiction to preserve tho at
tachment, add render a Judgment bind
ing upon the partnership property. Thu
court, by reason of 0vermier's answer
had jurisdiction TO foreolose PLAINTIFF
attachment, and to render any othe
Judgment in tho cause affecting only
the partnership estate. Reversed AMI
remanded.
Fort Worth Il Denver railroad VS., @
w. Barefoot OF al; from CLAY county
West, j, In asuit against railroad TO,
destroying the grass of an adloininl
land owner by permitting fire 10 escap,
from its engines, Il is error for the oour
TO charge the jury in substance anC
without qualification that the measure
Of damage is "the value of the grass dc
stroyed at the time of its destruction, 1
destroyed, under all the circumstance
OF this case" Is. q IL. II. II. X, VS.
Joachiml, Tex. LawlReview,gSD. Tn,
true measure of damages in this class o
cases is the value OF thu property de
stroyed at the time of its destruction
!, IT. & St. l., II. X, VS.. Young, . Tex
Law Review, 3l3). In ascertaining tina
value very great liberal ty in making
. proof should always be allowed by th
court. (T. 4 p. II. X, VS.. Levi & Bro,
Tex. Law Review, SOY. While the proc
Of the number of acres in given trac
of land may not always bo necessarily
made by an actual survey, yet the mum
, Der Of acres involved must be testified
I 10 by some witness who shows himsol
A competent to furnish reliable iniOrma
i ton, reasonably certain In it's characte
and not by persons who merely Civ
1 their loose conjectures or differences a
10 the quality of land, without toshe "
: ing 90 the facts from which their con
|. cluslons are drawn. (Sh. and Red. OF
!, Neg. e ed.) Sec. COZ, note y, But wher
the existence of the fact itself testife
to, Is firmly impressed on the mind {
= the witness, but the minute details an
v particulars concerning the TRANSACTION
Il are not fully remembered, he can sti
!, state his recollection of the fact ltse
! M II now appears TO his memory
!. authorities above cited; Green. Icy
e Sec. 40 and notes; Wart. on Ev. al
!. 44S). On questions relating to matter
: OF skill and trade and Ike question:
persons OF sufficient knowledge and o.
perlence In such matters, can testify nc
q only as TO facts within their person,
y | lrnnxnl ndna hut nlan In lhni MN al lnl