Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-04-27
COURT OF APPEALS.
Eynspses Of Decisions Rendered Ut the
Present Austin Sitting Of tho
Texas Court Of Appeals.
Three Tarrant County Cases Amrmet
and 0ae Reversed and Rsmanded.
Some Important Rulings.
Correspondence of the Gazette.

the State; from Willbarger. In this case
the appellant seeks to avail himself OF the
provisions Of the act of March 8, 1887,
General Laws, p. II AS to the failure
to file the statement Of facts within the
time prescribed, the appellants counsel
files an affidavit stating that he had pre-
pared and signed the sta ement of facts,
handed 1t to the District Attorney with
the request that he get it approved by the
court Judge, court being then in session /;
that being i'll he left the courtroom, rely
lying upon the promise Of District
Attorney, and WAS not advised of
the failure to file until it was too late
This statement is directly contradicted
by the affidavit Of the District Attorney
on file here. Held: That under the &C,
cited, when the party seeking to get Q
consideration OF statement of facts NO,
flied within the time prescribed, ii de-
wolves upon him to show that he has used
due diligence to obtain the approval and
signature Of the Judge thereto and to
file the same within the time prescribed,
and that the failure to do SO is not his
fault or laches, and that such ia lure was
the result OF causes beyond his control
We do not think that the appellant mas
complied with the act in question. There
being no error apparent of record the
Judgment is affirmed. Hurt, Judge.
Bryant vs.. Burge, from Tarrant. Burge
sued Bryant for injury occasioned his
wife from q fall over an iron stob al.
legged to have been negligently left by
Bryant In the main street of the city Of
Fort Worth. Held: That Burga failed
to make out case Of liability against
Bryant, and that the verdict and Judgment
are against the law ana the evidence. Re-
versed and remanded. White, Presiding
Judge.
Nolan VS.. Stapffscher ct al; Grayson
county. Action for rents due on lease
contract by which the rents were payable
in advance, after the landlord had evicsed
the lessee. Held: That where the land.
lord evicts the tenant, whether rightfu ly
or not, and resumes possession of the
premises, the rental contract is at an end,
and the landlord cannot then claim rents
for any length of time beyond the date of
the eviction though the rent is made pay
able in advance. Affirmed. Hurt, Judge.
Spoonmore vs. the State; from Hunt
county. Onmotion for rehearing. Held +:
Xix Novels and Hicks Unveils are idem
sonans, and the court did not err in its
charge to The jury In disregarding the diff
ference in the photography Of the name;
IL there had been any doubt as to the
names being idem sonans 1t would have
been proper and perhaps essential to
have submitted the question to the jury.
The evidence clearly shows that defendant
was guilty of theft, defined by articles
724 ana 725, P. c., and not OF the offense
defined by article TAO, and 1t was not error
to refuse q charge as to the latter otisnse.
Motion refused. Wilson, judge.
j. W. Marshall vs.. Charles Sheuber &
Co., from Grayson county. Sheuber &
Co. brought suit against Marshall for
debt and sued out an attachment and
seized property. Marshall reconvened
for malicious suing out the attachment.
The case was called for trial and Sheu5er
& Co. failing to appear, their suit, on Mar
shall's motion, WAS dismissed for want
Of prosecution and entry of Judgment in
usual form on the minutes. Ga the SAME
49, An; Marshall dismissed as to the sureties
included in his plea on reconvention and
this judgment was also entered separate
~. Thereafter on the same day Mar
shall's plea In reconvention was tried and
he recovered Judgment for $500 thereon,
Sheuber & Co. not appearing. Execution
was issued on this judgment to Tarrant
county and writ of Injunction was
issued by the County Judge of that county
returnable to the County Judge Of Gray
son county. On hearing in the lat
ter court 1t was perpetuated.
Held: That the petition for Injunction
shows no ground emitting Sheuber & Co.
equitable relief II the judgment sought to
be epjoined WAS illegal, unjust or in any
respect erroneous, adequate legal RENE
dies existed for revising it;these. remedies
W erenot invoked, land no reason Is shown
why they were not. Revised and dis.
missed. Wilson, Judge.
W. o. Ellis & Co. vs.. Beteman G Bro,
from Tsrrant county. Ellis & Co. sued
Batemsn & Bro. on account for 724 gal
Ions of molssses sold and shipped them at
their request. There was judgment for
Bateman & Bro. 1t seems that the mo-
lasses were short tn, amount sued for
when received at Fort Worth; Bateman &
Bro. paid the price agreed on for the mo-
lssses, less the amount which they were
found to be short, and it appears that IN
der an arrangement Bsteman & Co.
consented that Ellis might sue the rail
road company for the loss and that Ellis
did sue in his own name
II seems that Ellis requested Bateman &
Co. to send him the papers respecting the
loss, and that he would credit their ac-
count with that amount and sue the rail-
road company. Bateman & Co. did this.
On the trial several letters touching the
Molasses matter, received byiBateman &
Co., were read by Mr.. Batemsn to the
Jury, and their contents explained. This
proceeding was objected to and bill OF
exceptions reserved to the action Of the
court overruling objections. A special
charge was also asked, to the effect that
Ellis & Co. were not precluded from suing
Bateman by the fact that he had sued the
railroad company, unless 1t was
shown that Ellis recovered sufficient
amount from the railroad company to sat-
isfy the loss sustained in the shipment.
This charge was refused and bill reserved
to that action. Held: That there is nc
error in the rulings complained Of. AT
frmed. Per curtain.
Gohlson & Wife vs.. the Gulf, Colorado
and Santa Fe Railway Company; from
Tarrant county.s Action to recover of the
railroad company damages to property in
Fort Worth by reason Of the con-
struction of its railway adj,cent
xL.-a.z Th, y,IsiptiHI cuad for