Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-05-08
THE HIGHER COURTS.
synopsis Of Decisions Rendered at the Aus
tin sitting
M rnE lufREMn couRr.

Henry Hamburg w. y, T.. Wood n Co., ap
neal from wheeler. II IL urged BY appellant
that under our statute for the trial Of the right
OF property, claim ~ IN undivided interest
in personaliy cannot be asserted. The opinion
Of the court IL that the owner OF an undivided
interest levied upon In property seized NAY pay
claim under the statute, and the owner OF the
other interest not being party TO the VIII
need not be made a party TO the proceeding
aud that tho aiidavit II sufficient TO inttitute
he sheriff. N. in fact, the interest claimed II
the interest ieiied upon, though their Identity
be not stated in the AFFIDAVIT. The affidavit
made by the claimant IL not pleading II Y
TO DO passed upon only by the shcTlf, who IL
not required 70 be learned In tho law. IL u
safeguard additional 10 the bond aga!nsi frivo,
Ions delays, and ite functions arc discharged
when II has been accepted, In company win
the more substantial assurance Of good faith,
the bond.
The defendants claimed the property by pur.
chase and ALLEGED that the consideration paid
| by them was tho sum OF $500 The proof was
| that sands was Indebted 20 them and the con
! sideratiOn WAS paid by credit on the demand.
allegation and proof "a not correspond, was
| properly oycrTulcd. IL WAS not alleged that II
was paid IN money, and the avermcnt that the
/ consideration was paid BY them, the obligation
thereby incdrred discharged, was sustained by
the evidence admitted.
The general rule IL that the declaration OF the
grantor after sale 10 not admissible In evidence
70 impeach the title OF the grantee but an ca
coption, as well established ~ the rule Il that
when prima faeie case OF combination or con.
spiracy has been made by other evidence, then
such declarations may be admitted, And
when u prlma facie Gaze OF fraud has
been made by proof that The
vendor remained in possession after
sale, by consent q the yendoe after such ven
dee was entitled thereto by the terms OF the
purchase, then the declarations OF the vendor
while In possession are admissible against the
yendoe to show fraud 10 tbe sale. ~ may be
that this evidence II admitted would not have
changed the TpHult. N
for this reason would be to deprive the appel.
liant Of the right TO have the Issues tried by
Jury Reversed and remanded. opinion by
Robertson, j.
Joseph kecner vs. Duff ct AL, error from
Hays. The proceeding Tor partition Ia statu-
tory, and Judgment for a sale OF the land
sought TO be partitioned Is authorized only In
the event that commissioners report TO the
court that fair and equitable division cannot
be made. The decree In this case recites that
y appeared from the pleading and evidence
thht the property was not susceptible OF divis.
Ion, and for that reason the court ordered a
sale and distribution. Reversed and remanded.
Opinion by Willie, Oh j.
Alamo Ice Co. vs. Yancey \ Foster, appeal
from BeNar The answer Of appellant to the
writ OF garnisoment showed an Indebtedness to
crosby x Co, White interviewed and claimed
nc money, butt his plea Il Intervention was held
bad on demurrer, and he went out of the case
and appellant without amendment or prayer
for White to be made party went TO trial, and
rs mere was no contest In the case made by the
against appellant. That the court Improperly
Dismissed the intervcnor Ia not such an error as
can co., avail appellant Affirmed opinion by
w. A. Konntz Va. NJ Hays, appeal from vii
hanson. The caption OF the transcript does
not SHOW me uate OF the adjournment OF the
court me last order made found In the record
was on the 18th day OF January, and tho appeal
bond was filed and approved February 28
1885, more than twenty days thereafter
Ito ~ does not Sppear therefore, that the
thls court Jurisdiction. Dismissed. oplnion
by Willie, o. j. N'
Peter Nelson vs.. j. @, Altgret, appeal from
BeNar. The note sued on was executed hv
Nolson and one Howard The appellee failed
TO get service upon Howard, and dismissed az
to him and took judgment as TO Nelson. This
was coIre9., ~ Ootii Nelson and Howard were
primarily liable. a different rule obtains only
when the dismissed Is to the party primarily
liable, and the judgment goes against one VINO
, NOT Decay Is suggested and damages al.
lowed. Affirmed, Opinion by Willie, CD
Sallie j. Harvey OF al. va. q. A. Ogiiricappoal
from Limestone. There was no request TO 6e
conclusions OF fact and law, The only assign,
erred In rendering the decree In favor
of defendants, said decree NOT heinp
warranted by the evidence" 2. "Tho
decree IL contrary to tho law and the evidence.
and should have been 10 favor OF the uIainfJ1t
Tor Title TO and possession of the land In con
!.royersy ana for rents and damages as prayed
In plaintiff petition" Under rules rs and 9g
and rulo q as amended at Tyler 1881 500 tis ~
din Va, Alley, 81 Tex, $50 the astignmenis are
not such as to cntltle appell nts TO a revision
!" "r .no Judgement appealed from, and Il is AT.
Sickles ct nj. vs.. White ct al, appeol from
Wise, Appellants claim under transfer OF tho
t tSSrineste before patent and appellees claim
lnIough regular chain OF tito from the
phtchtees TO themselves. There was some con
uoVersy as To one OF the transfers OF tho certId
Gate ana IN vi,w OF that fact the court told the
pass by written transfer or bv verbal
sac, and that title thereto might h.
s,cgu,,red " an adverse holding for two years
tmht NY elther OF these methods title TO the Ger
tihcate as between the true owner and ,bo
claimant would pass. This was All thai nnneI |
~ my Gonau ask and Il is unnecessary 10 INQUIRE
session OF certificate can thereby Scnnirep as
CURED throughit. az
rb heG are VS. Dun ct al appeal from Hays.
ueal with that OF the same name reuorted
supfr; That was writ OF error sued ont he |
%,o tnn ming OF motion for new trial. from the
,, IullnS OF which the present appeaI Ia |
taken. The questions presented are the same
and bel K determined 6y the indemeni AZ sa ,he
Sssei t9ls appeal 10 dismissed. Opinion by
IN COURT or APPEALS.
4, Johan MllIer VS.. the State, appeal from Col
I'm. ON appeals from Justices courts 10 ~
he a,yn ooIrS tns statute does not require that
w, appeal pohu shall name the offense wi h
y, wnieh me defendant Ia charged and eonvic,od
IN Inc lower court. Wilson's Grim For'na ~ oS uu
but IL " prerequisite that II shall ,.hn az az
proved by The court from whose indgmen, *
appeal was taken" Tho authorize 10 ann.a ,,io
u Is not conferred upon the nnnoIlot P ~
Dlher tribunal In THIS particuiar smcb %o ady
"a m!sdemeanor cafes differ from anneal IonS
~ eiVil cases. In this case the apneal hone ,,'a
nor IA sninciont amount and tho apneliant " 20
leteI 10 hle new bond Ia the cnnntv c,,, ",
,Wh,, was denied. Affirmed. Opinion nv
n Perry Bull vs.. State, appeal from C.ld.ou
.hole we're TWO counts In the Indictment an" Co.
vn..ery anu one Tor passing and aiteriny Tba
nnssuunoht was an order drawn by onr nnfard
s,'aLenulht tnew that he was only entjtiad w.
o.eu, out obtained thereon 1890; the cytdons. ~
JJ sn ~ uncertain whether the instruucni vyos
,,tvIeu Ky the defendant or whethcr ne
, 1--we uiu not make u mistake hims,if 70 M
aV.l " true, thon the def sndant could nat ho
, ~ Vi either charge In the ia dictment This
80, Wy Important question In the case ana tho
49,. 49, ANU 10 charge upon that isaua Pc
gusee a u temnnded, Opinion by While pJ
"a ~ ~ cooper Vs, Sinclair ct al apneai 80,
c J1t"nI inc petition for cortiorari Was sv9
~, Naem LIN W NV, ana set forth grounds 10 Sntit
~ iantln 70 nave the matters there N siaiaI
,c - ~ ,ne county court II the iudgmeni IN ins
~ vourt was rendered by aefa1tand wiz
EN- S"S uNIuehGe TO SUPP II, then said ina
' lNn' MS nudity aud void. r. s. I57s, . 'Wi6
III ~ Where tho petition seeks rniins .
bSn, w, Volu lnugmentl Is not neressary ~
! Nv "uni5 iohel merits or grounds for ~ I
,,in eN, ',aS ana az Reversed and rem,,ndod n
Chenoweth X Oates ys l. u O., 4
Ia IL