Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-07-11
COURT OF APPEALS.
Synopsis Of the Decisions Rendered at
the Austin Sitting Of the
Court Of Appeals.
Made up From tho Full and Official Re.
port of the Rulings and 0piu-
ions Rendered
compiled for tho Gazette.

county III bhc NobS va DgeiH NSs
Crisp, recently reported in these
columns, 1t was held by this court the
peremptory resignation Of county
officer created go lnstunti vacancy,
and in that case, which WAS with
reference TO the resignation of the
county Judge, that the vacancy could
only be filed by the commissioners
court. Art. 1887, Rev. Stats. With
reference to sherifls, the same con-
atruc,ion must he placed upon article
45l5 of the Rev. Stats. In this case,
the district court temporarily sus-
pended the regular sheriff pending
proceedings against him for mall
feaeance at the next term, and
appointed appellee to act as
sheriff In the interim. Some time af-
ter appellee qualified S. resigned, and
the commissioners court elected ap.
RELIANT TO serve IA sheriff, who quail.
fled and gave tond. Appellee, the
district court appointee, refused TO re-
sign, and this was an action in the
nature OF "A quo warranto by appellant,
The quo warrantO proceedings, how
ever, were dismissed by appellant at
the March term OF the district court,
and the district court In the case OF
the State va. s., declared the Office OF
sheriff still vacant, and legalized the
official acts Of appellee Appellant
then resigned as sheriff and brought
this action to recover fet q aud emolu.
ments due him as sheriff ard collected
10y appellee during the time he
held Office under appointment by
the commissioners court. The
first query: Was the oil ,e
vacated by the resignation, Ia assured
by this courts construction OF Art.
45l5, above noted. In an elaborate
opinion, the court holds that, notwith-
standing his suspension, s. was the
sheriff de jure, though not de facto,
and that when he resigned, vacatlng
the office, the appOintee of the COM
missioners' court became the sheriff
de jure In his stead, and rs such was
entitled TO the fees and emoluments OF
the Office during his incumbency un-
der that appointment, and should have
had judgment therefor. But inas-
much AS appellee, "A legal appointee OF
the court, was acting under apparent
right, ana without, he would only be
required to account for the fees aud
emoluments received by him after
deducting reasonable expenses In earn
| ing them. Reversed and remanded
The Missouri Pacific Railway Com
pany vs.. Graves, from Cooke county
If In a suit for damages the petition
specifies the act constituting the IL Jury
and charges that it was negligently
and carelessly done, the allegation of
negligence is sufficient. The petition
In this case alleged that the mules
were not properly loaded and trans.
POI ed by defendant and that this act
was negligence on the part OF defend
ant, wherefore, being sufficient, the
deisndant's special plea was properly
overruled. The appellant requested
the following special Instructions A
carrier OF live animals liz not liza ble for
any injuries inflicted by said animal +.
upon themselves or each other while
in transit unless caused by Its negli-
gence. If the animals of plaintiff
were Injured by their restless
ness or movements on the car, or he.
ing down and trampled upon by each
other, or by bruising and skinning
thu IN selves against the sides of the car,
the railroad ImpIny was not respon.
sible for such injuries. II said injuries
were caused to be inflicted by said
animals upon themselves or each OF II er
by being overloaded or crowded In the
car by the shipper having placed too
many animals IN the same. the railroad
company IL not responsible therefor,
= No 81 If defendant contracted iOr
asinRle car and chose to load the came
with more animals than the SAME
could properly carry, he alone was re,
sponsible for any Injuries to said ami
mails by reason Of their being over
crowded in said car. Held, that In
view OF the evidence. the charges were
properly refused. The evidence sup,
ports the judgment. Affirmed.
The Texas ~ Pacific Railway VS.
Eddieman q Davis, from Parker
county. Appellees recovered iudg
ment in justice court for 500 damages
for burning buggy-top. on appeal
TO the county court the appellants
failed to appear; the court heard the
evidence adduced by appellees and
rendered judgment for 800 and inter,
est thereon in their favor. There be
ing no statement OF facts in the record
the recital in the judgment to tn,
effect that IL was rendered upon evil
dence adduced by defendant In error
Ia sufficient reply to the first and sec
ond error assigned No other writ o
inquiry was hcceehtVJi llle pIuCteu
ing had was in accordance with Art
1850, II, : II was not error 10 award
interest by wsy Of damages. Texas
Law Review, 253 Affirmed.
Alternately d Co. Va. Hewlett, from
--- county. Suit to recover damages
for breach OF contract for ser vice
Plaintiffs employment was for the
"cotlon season. OF 1883 4 His petit
ton alleged his discharge without
cause coon after his employment, ant
that he was paid only In part upon his
contract. The suit being brought anC
maintained upon the theory that, be
ing for services during the cotton
buying season, and being discharged
II without Just cause, he was entitled t
the benefit OF his contract, and to re
cover the amount stipulated, provided
he was unable otherwise by his serv
, ices to make or acquire the sale
amount; and any amount which hi
may have made. or could have made
by reasonable diligence after his dis
charge and before the expiration OF th'
period for which he had been engaged
would be deducted from the amoun
stipulated to be paid him by the de
| fanIa.N ~ An nt arr N