The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-05-26
HIGHER COURTS.
SUPREME COURT.

HIGHER COURTS,
SUPREME COURT.
City of Fort Worth VS.. L. w. Craw-
ford, from Tarrcnt. Watts, j. Adopted.
In reference TO the liability of munich
pal corporations for creating, or failing
to remove nuisance, If the nuisance
grows out of acts done exclusively in
the interest Of the public, II is only liza
BILE for a careless or negligent execution
OF the duty. But il the acts out of which
the nuisance originated, or by which il
/ is continued, We're done for the private
advantage or emolument of the munich
pal corporation, then, irrespective Of the
question Of negligence, it would be- LA
bic for injuries resulting therelrom.
The establishment Of place for the de-
post and burial OF bodies of dead ami
Inals, garbage, excrement, etc, for the
! purpose Of improving and maintaing
| the sanitary condition OF city, is an
act done Tor aud In the Interest OF tho
| public. WGen the city passes such or
dinances, and provides punishment
for their violation, that ii complied with
no injury would result to an adjoining
landowner from the maintenance OF
such place of deposit and burial, negli-
gence upon the part OF the city in en-
forcing such ordinances must be shown
TO enable such adjoining owner to 70
cover. Reversed and remanded.
Sol Kahn VS.. Thomas Trammol IL Co,
from Mitchell county. Willie, C. j. The
affidavit upon which the attachment in
this case issued, reads: Before me, the
undersigned, clerk Of tho district court
in and for the County of Mitchell, State
Of Texas, this day personally appeared
Thomas Trammel, and made oath that
w. 7. Lawson, Robert Smith and Sol
Kahn, doing business under the firm
name and style Of Lawson, Smith IL Co.,
arc justly indebted TO Thomas Tram
mel u Co, composed Of himself, r. H..
McCauley aud j. NJ. Burton, in the sum
Of ", l25, which will fall due on the 2lst
OF April, 1884, four months after date,
and that they are about to dispose OF
their property, with intent to deiraud
their creditors, that they will probably
lose their debt unless attachment ia is
sued, and that this attachment Is not
sued out for the purpose Of lnjuring or
hRrrassing tho defendants, but merely
TO secure his claim.
Held: The affidavit came fully up to
the requirements of the statute. The
violation OF grammatical rules will not
OF itself Vltiate such affidavit when its
struction which will necessarily sustain
it. The meaning of the present alfida-
Wit would not possibly have been mis-
understood, and as that meaning full
fills the requirement Of the law tho AZ
fidaYit is sufficient (Baker vs.. Stuart, 4
Texus Law Review, 24D Affirmed.
William BOles and wife VS.. Elliott d
Roe, from Palo Pinto county. Willie,
Co. Appollee5 sued appellants TO re-
cover tho amount due upon note exc
cuted add delivered by tho latter TO the
lormor Tor lumber furnished for the
| building OF a home upon promises de-
scrIbed In the note, and prayed for tho
foreclosure of a lumber dealers
| lien reserved on tho face Of the note
To secure its payment. Tho wif5's
| separate Acknowledgements Of tho exeCu-
| ton Of the instrument was taken as pre-
| scrlbed 10y statute, but 10 did not appear
/ from endorsements upon the note That 70
| had ever boon recorded, nor was that
/ fact alleged in the petition. Judgment
| by default was rendered against both
| appellants, execution against the prop
| erly oil both ordered To issue, and IL
foreclosure as prayed for, decrood.
| From that judgment this appeal is
taken. Held: ltwas error for the court
TO render Judgment against the wife
whom tho petition contained no aver
mont that the debt was contracted for a
| purpose which could hX liability upon
| tho wife (lrimhle VS.. Miller, q Texas
! 2l6; Darlington w. Burlesor, 20 Toxas
| 257; StOrnsbury Va. Nichols, 30 Texas
| l45). There being no ayerment that the
| note SUED on was ever re-
corded, without which no lien could
oXist, the court erred In decreeing
| foreclosure OF q lien upon the property
IHanTihnn "A NJ a. d, DO.
! that the Judgment of the court Tecites
that this fact was proven, cure the worth
| OF It's averment in the petition. An al
| legation that tho note was executed and
/ delivered to A IN sufficient prima facie
| 20 place the ownership In him, Re-
versod aud Temandod.
international q Great Northern rail
| way W.. Mary Cooke ct si., from Bexar
county. Stayton, !. Whore the cause
Is not tried at tho first term, any erron-
eous ruling OF tho court in regard to a
motion To quash the citation becomes
immatorial error. IL, in consequence OF
any wrong of a railroad, PERSONS ami
NAL Is 10 injured that IL becomes neces.
sary 10 incur expense in caring for aud
curing 10, the company il liable
for such reasonable expenses az are nee.
essarlly incurred in this respect. Tho
general term used In q statute imposing
q liability upon railroads for injuries
| done TO animals, unless their railways
are lonoed, do not apply to such place as
| public necessity or convenience require
I 10 be LETT unienced.
| When an injury is inflicted by rail
| road company upon stock at q place
whore public necessity or convenience
| Will not permit the railway 70 be fenced,
/ NJ rests with the company TO clearly os
/ tabiish this fact, which is proven Ike
/ any other fact, aud being established the
/ comp my is only liable for a fail.
uro lu exercise reasonable care.
Negli spuge cannot be considered gross
unless evidenced 10y an entire failure 10
| exercise care, or by the exercise OF SO
slight degree OF care as 10 justify the
belief that the person on whom caro-
/ was incumbent was indifferent Tn tho
interest ana welfare OF others II tho
! injury 10 stock occurs within the city
/ limits Of city whose ordinances mako
II unlawful for stock % run at large
within such limits, the entry of stock
on the railway IL n trespass, and the
railroad IN not responsible TO owners for
injuries TO such stock, unless the CON
duct OF the company's employees
amounts To gross nOulipoupn Rayorqod