Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-11-30

l5sueQt ana the STOCK was eelZ 20 Anu SOLO.
2. Where In execution sale party has
notice OF & mortgage upon property pro
posed for sale, and Purchases with such
notice, he has NO defense xgsirst 8 bons
fde mortgage. 3. Payment cf the Bell
note by appellees aid not extinguish the
debt, the psyee having assigned the note
to sppellees and thsy are entitled to re
cover in this actiou. No error. Az med.
Hurt, J.
st. Louis, ArkAnEes and Texas Railway
vs. ". T. Mckinney; sppesl from Hop-
kins. Suit for damages BY appellee by
reason Of having his fence torn down snd
failure of appellant to build cattle euarcs,
whereby his wheat crop was destroyed.
l. Where party fails to interpose the
plea of res edjudicata he will not be per-
mitted to introduce evidence to prove the
fact. The court did not err In rel setting
the evidence rs to res sdjudicsts. No
reversible error, Affirmed. Hurt, j.
". T. Maddox VS.. J F. TierneY; error
from Ta'rsnt. Suit by appellee against
appellant for Selling and converting Ger
tain horses, the alleged property of ap-
psllee. Appellant answered by gene sl
denial and special pies, to-wit: That at
the time OF the alleged seizure he WAS
sheriff Of TkIrsnt county and se'z ID same
by v!riue OF an order Of sale issued out
Of the district court Of said county, that
as sheriff and In obedience to said order
ne did sell the said property. l. Com
ceding thst the district court had juris-
diction OF the subj &c! matter out OF which
the order OF sale grows, and that tie
writ or order Of sale was found. this
special answer does not present de-
tense to plaintiffs action. While
we freely admit that the authority
on this proposition are COL dieting, as We
have fund no expression from our own
supreme court upon this question, we
sre LETT to select that view, which best
sccords with principle. IS Cal t469-14;
Barbour's 5C6-3l; N. Y $40. II Is
shown that the Augment under which the
order CT sale issued, was one foreclositg
mortgage on the property to satisfy y
debt agairst one Turner. We are Of
opinion thst il the property upon which
the motglge Is sought to be foreclosed Is
In possessio of person who Ia not 8
party to the writ, nor subject thereto, 1t
cannot be seized, bat the Cfticer must
proceed 81 Is required in art. 1910 R. S.
There WAS no error in the court below
Affirmed. Hurt. j.
SUPREME COURT.
Hicks & Bro VS.. Rose & Redditt; ap-
peal from Shelby. On motion for renear-
Ing. The grounds Of the motion for re-
hearing in this case having been duly
Considered OF by the court, 1t is 80 udged
that the same are not tenable, aud the
opinion Of former day Of this term will
remain unchanged. Motion ovsrruled.
Ssayton, c. J.
Gulf, Colorado and Santa Fe Railway
vs.. J. L Edwards; appeal from Ellis
This Is 8 motion to Affi IN on certificate.
and it appearing to the court that the
grounds set out for Lffirmsnce on certif-
cate are well taken, same will be sus-
tanned. All mad on certificate. Say
ton, CD
Geo. W. Henelee ct al. vs.. J. L.
Henslee; appeal from Hunt. This is q
motion by appellee to iii m on certificate.
Appellee in his motion has shown suffi
Gent grounds to affirm CT certificate, and
same will be sustained. Affirmed on Ger.
tif1cate. Staytor, c.
Nj Cullen ct 81 vs.. NJ. Diane & Sen;
appeal from Navlrro. GA motion TO dis
miss appeal. Appellees move to dismiss
this appeal on the ground that there are
no conclusions Of claw and fact" in the
record IS required by the rules Of this
court. Held: The absence OF conclu-
sion Of Law AID fact is not ground for the
dismissal Of al spDesi. Motion over
ruled. S:sgton, G j,
Missouri Pacific Railway vs.. Wiley NJ
Smith; appeal from GInyson. There be-
ing a written agreement filed in this cause
between the attorneys for appellee and
appellants compromising the suit, and
that same be dismissed at cost OF Rppel-
liant, il is therefore ordered that this case
be dismissed and stricken from the dock
ct at the cost OF appellant. Stsyton, CD.
M. Cullen ct s. vs.. NJ. Drane & Son;
appeal from NAVARRO. On motion to
strike out statement of facts. It lie
sn OWN to the court that there was no Or
der by the court below allowing ten days
for fling statement Of facts, that the
same wEs made up within ten days, but
was not approved oy the court for thirty
or forty days. Held: The motion to
strike out the statement o, facts will bs
sustained. StsYton, c. J.
J V. Hudgins et al VS.. M SAMSON ct
al; appeal from Johnson. Motion to Ed-
vance cause. In the motion to advance,
1t is shown that this Is an eppesl from e
Judgment OF the district court CT Johnson
county sustaining ruling Ct the probate
court Of said county il reference TO 3 par
ti!icn Il real estate amongst devise es
under the will Of one SAMSON, and on this
ground motion is fled to give the Cause
precedence. Held: The motion to give
precedence will be overruled. Ssayton,
q. j.
C HensleY ct 81 vs.. Bsscom Mcdaniel;
appeal from E. Is Ga motion to Affirm
on certificate. It being shown to the
satisfaction OF the court that legal grounds
for the eff nance Of this cause on certlt1-
cate txjsts, the motion to affirm will be
sustained. Affirmed en- Certificate. Say
ton. C. j.
W. A. Walker IS. R S. Terry; appeal
from Marion. o. motion for rshssring.
The grounds set forth in the motion hav-
ing been considered by The court, it is
found that same are Lot mxinteinsble,
and the motion for rehesring is therefore
oyerruled. Ssayton, G J.
John G. Brown, receiver, ct alvs Owen
Sullivan; appeal from Harrison. Ga mo-
ton for hearing The grounds of the mo-
ton having been duly considered BY the
court We have found no reason for chang
ina our opinion Of former DAY Of this
term affirming this cause. Motion over
ruled. Stsyton, CO.
Missouri Pacific RiilWsy vs.. J. f.