The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-05-19

watch (Dodd VS.. Arnold, % Texas, 9S) 4.
There is nothing in appellee's conduct
toward appellant which would preC Jude
him from recovery. Affirmed.
Mcdaniel IL Co, VS.. q. p. Cherry el
al, from Caldwell county, Willie, C. j.
Plaintiffs in error brought this suit to
recover the title and interest of G. p.
Cherry in certain twss-tOry building
situated on lot 2, block %, in the town
of Lockhart ana for possession of the
same, alleging the value thereof to be
$3.50. A special demurrer setting up the
want of Jurisdiction Of the court was
sustained, whereupon, an amended Pc
tition was filed alleging that the proper
ty was undervalued in the origin al
petition by mistake, " whereas the true
value thereof was $1,000 and further,
that plaintiffs had recovered judgments
in two suits 9gsinst Cherry in Travis
county, in which suits Writs of attach
III ent had been issued and foreclosure
OF the attachment lien decreed, with or
der Of sale; that orders of sale issued,
the property levied on under them sold
and plaintiffs became the purchasers of
the right, title and interest OF Cherry in
said property and that he still holds
| iorcible possession OF said property /;
that the rents are worth 500 per month
and the property itself reasonably worth
$1,000 that the other dofendants have
same claim in said property and are
made defendants; that GERRY IS insOl-
vent and ifpermitted to use and occupy
said property and it's revenues plain
| tifis would be without remedy. Writ
OF sequestration was prayed for, bond
was given as the law requires and the
property repleYied by Cherry. The spe-
oial demurred TO the amended petition
because Of want of jurisdiction
Of the court was again sus-
Held: Error. When the plaintiff would
be entitled to recover upon the facts
stated in the petition, without regard to
the value OF the property, it is error to
| refuse an amendment OF the petition,
merely charging an increased value of
the property. An amendment may SUBJ
ply an allegation necessary TO give the
court jurisdiction, and causes have
been remanded to give party an OPP
portunity to make such an amendment.
If the value OF the property be aYerred
for the purpose of giving court juris-
diction, the defendant may allege and
prove this fact and defeat the jIirisdic-
ton. The want of jurisdiction not
being apparent on the face Of the plead
lngs furnishes no ground for sustaining
WI NtAau EAbNllNls lllOuku
the facts stated would entitle plaintiffs
to an action Of forcible entry and do
tainer, they are not confined To this
remedy, but may resort TO any form of
action by which they could recover the
property. Reversed and remanded.
Frank Milliken VS.. r. S SmoOt, from
Parker county; Slayton, ]. The action
OF a court excluding evidt nee cannot be
revised in the absence Of of excep-
tions showing what the evidence would
have been. Evidence of conveyance
OF property subsequently TO the origin
OF q debt under which the property was
sold, is admissible TO prove that the
property was so conveyed To defraud
creditors. Where suit Is brought by the
husband to recover propertyi in his wife's
separate right, and there is no aver
ment of fact which won q make the
property community, but on the CON
traryi The averment is that the property
is the separate property of tho wife,
though the petition may contain an al
ternate prayer for recovery in case il
should be found to DO community prop.
erty, and there may be evidence adduc-
| cd tending to show that part OF the
property sued for was community, the
court erred in instrucIng tho Jury to
find for the plaintiff II the property was
the separate property of tho wife as al
legged, or the community property OF the
husband and wife. Reversed and re-
manded,