Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-17

I anu exemplary against Upton anu the
sureties on his attachment bond, to-
gether with the constable and the sure
ties on his official bond Among others,
the appellants plead res adjudicata. Judg-
ment for Turner for actual damages.
Held: The plea of res adjudicata was not
well taken. Where case is tried with
out jury, the presumption obtains that
the court decided the case upon compe-
tent evidence, and where party COM
plains CT the admission of illegal testi-
mony the contrary must be shown. No
reversible error. Affirmed. Hurt, ]
r.. Matkin VS.. City of Fort Worth
appeal from Tarrant. Suit by appellant
to recover for his services as chief of the
fire department. 1t is shown that appel
liant was elected chief of the fire depart
ment for one year at a salary of S15 per
month. After four months of his term
had expired, the city abolished the
office and paid appellant for his time TO
that date. Shortly after this the city By
an ordinance duly adopted, again Gre
ated the office of chief of fire department
and another party was chosen TO fill the
position. 1t also appears that the office
was created by the city council and not
by the charter of the city. l. The city
council may not have had power to re-
IlON e OIllctI, tIccteu OF appointed,
but the Office having been abolished legal
ly there was no officer to be removed.
=. The causes, motives and objects
moving the council to abolish this office
cannot be inquired into if they had the
legal right to do so, but we find very
laudable reason assigned for their action,
to-wit: TO lessen the expenses of the city.
3. The office was created by the city
council and OF by charter. The city
very clearly had the right to abolish the
Office. The office being legally abolished
the emoluments ceased from the date of
the destruction of the office. Jones vs..
Show ct al, Is Tex, 577 Noreversible
error. Affirmed. Hurt, +
Wayland & Reynolds VS. City of Fort
Worth; appeal from Tarrant Suit by
appellants to recover damages to goods
being transported on wagon along the
streets of the city, said wagon being
overturned and goods thereby damaged.
Verdict for defendant. l. The court did
not err in charging the jury that if the
damage was caused without any fault or
want of care upon the part of the driver,
then in that case appellants could re-
cover. =. The court did not err in
charging the jury that if there were two
roads leading i'll the direction in which
appellants goods were> being moved,
the one in good cOndi-
ton and the other in bad
condition, and the driver knew of this
fact, and of his own volition attempted
to drive over the road in bad condition,
then in that event appellants could not
recover. 3. When the undisputed facts
show negligence on the part of the plain
tiff contributing to the accident, the
judge ought to direct non-suit, or YER
dict for defendant, although i'll order to
do so he must necessarily find an affirma-
tive fact, viz: that there was contribu-
tory negligence. No material error.
Affirmed. Hurt, J.
Louis Cooper VS.. the State; appeal from
Karnes. On motion for rehearing. In
the motion for rehearIng it is earnestly
insisted that Arts. 1913 and 800 p. C. de
fines the same offense, and that they pro-
vide different punishments; and that
therefore the punishment being uncer-
tain, no punishment should be inflicted
Held: 1t will be readily perceived that
the elements of these offenses are not the
same. In that defined by Art. 32O it is
not material whether the polls are open
or not, nor is it necessary that the weapon
he carried during the hours the
polls are open. On the other
i'll the olfense defined by article 1853, that
the accused have, or carry the weapon
at, or to the crowd collected to vote II
the weapon is carried During the hours
the polls are open) within one-half mile |
of the voting place, the other elements |
attending, he would be guilty. 2. The |
presumption obtains that the election was |
legal, and if the question of the illegal |
ity of the election could be made in this |
collateral manner, the burden is on the |
accused to show illegality, and not upon |
the state to show that it was legal. Mo- |
ton overruled. Hurt, J.
William Harrell VS.. the State; appeal |
from Karnes. This is companion case
to that of Cooper VS.. the State reported |
above. The facts being identical in both |
cases. The points decided above are de- |
cisive of this case. Affirmed. Hurt, J
W. q. Butler VS.. the State; appeal |
from Karnes. On motion for rehearng. |
The question presented i'll this case. was
decided adversely to appellant in theaIses
of Cooper VS.. State and Harrell Us. State
above. No,5esror> Affirmed. Hart, ].