Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-11-19

ant, TO reverse judgment re nder I'D in
conformity TO cause Of action stated In
q petition, merely on account Of recital
in Judgment not necessary to have beer
made. Ia such a case il would seem thtt
the complaining party should SNOW
through q statement Of facts, or bill! Il
exceptions, that the error which he seeks
to show by o mere recital actually exists.
All med. Sssyton, G J.
Frank Mllif en- Vs. T. s Smoot; sppesl
from Parker. Suit by appellee OF Trial CT
Inc right OF properly. l. A trsspEs'e'
can not inquire ia!o the equities settled
or charged upon property in controversy
~ Where deposition is taken witho u
notice 80 the other party rs required BY
5tatdie, the same is not admissible In evi
derce. 3. Appellant had levied upo5
fJuc work horses st one time ard upon
some forty hesd OF horses on the range 81
another time, all Of which propt rt7 was
cIsiued by pellee. Appellee, wntn the
NO K horses were frst levied on, hrougb
suit and recovered same. 1t is insisted
that the first sui. prec!udes ap
psIlee from bringing another. Held
While Eli could have been included
in sirgle suit, the owner,can pursue hii
rights sgsinst lhe two distinct irvssinn-
Of his property. Aft med. Walker, ]
Eis, Line and Red Il YER Railway VI
Mary A. Culbsrsor; appeal from Camp
Suit by appellee 10 recover damages 70.
the desth of her husband, alleged TO hsvs
| been caused by the negligence ct spDel
liant company. l A railroad company
cannot, without statutory authority, Lease
is road 10 another so IS to sbsolvs itseli
OF its duties to the public, snd when such
| 8 lease ia made the lessor is
lisble for IN injury TO 8 pas
senge- resulting from the negligence OF
the Iessees. 2. The husband Of appellee
WAS killed while attempting 10 couple c
car. Il WAS SHOWN that the railway on
which the accident occurred belonged to
sppsllsn: company, but was operated snc
controlled By the Missouri, Kansas aEG
| Texas Railway Company. The question
in this case is, has ssrVsnS Of railway
company operating without authority OF
corporation, right to recover OF tie
owner Of the road, damages for
personal Injuries resulting to him
IL the course OF his employment,
through the negligence of his employer
or Of It's Oil GERS or SCENTS. This is
new question in this state, never having
5eea decided by our courts. Had: Tn
rssson OF the rule which holds the lessee
lishie, fails in case Of 81 emploYe of the
lessee, and We think thst to follow II In g
CAFE like this, would be 10 give it sn ar
biCrary, and not 8 reIsoIsb bic application
The court erred in refusing the evidenc'
CT appellant 70 the effect that at the time
Of The accident the road WIS not operated
or controlled by defendant company, and |
that deceased WAS not in its service at
the time, but was in the employ and act |
i1g for the Missouri, Kansas and Texas
Railway Company. Reversed and re-
manded. Gaines, J.
G. NJ and Nancy Houston VS.. W. T
Blythe ct al; appeal from Hopkins. This
aclIep had its beginning In suit of tres
pass TO try title began In 1889, but eli !
questions as to title were finally settled
by O alignment rendered on April IL, 1887.
The sui. wac also for partition, many par.
ties being Interested in the land in con-
troversy Commissioners were appointed,
who duly nate partition. Al parties wer.
salts fed with the partition as made By
the CO nmissioners with the exception OF
The appellants who appeal from the ssi(
partition. l. The court did not err il
nis Instructions 10 the commissioners, in
structiug them t divide SID partition Tx
lsEds here in controversy between TIT
different owners in any number Of blocks
or psrcels as they nigh: zee proper
order to sf:ct an equitable division. 2
a ps!lz0!'s third assignment Is, ''sb
court erred In its Idgaent in corfifnirt
the report Ct The com missionsrs herei:
because said Judgment Is contrar,
| 10 the la9 CT the case, euC
against the evidence heard at ii
| trial thereof" He'd: Such an assign
manG IS TOO geuersl 10 entitle sppellan
| 10 8 revision OF he cssa upon the cuff
cieLcy Of the evidence to show thet II,
partition made WAS equitable between tt
| parties No error. S sytor, G ]
john a. Berg!n vs.. Producers Msrbl'
Company; appeal from johnson. Sul
by Gppellan. for third right Of property
l The assignee O; 6 personal chattel il
bound by the prev!ops admissions OF e:
| assignor In disparSgement Of his own sp-
p.ren. title. But this Is true only whers
there is al identity OF iDteres
D tween the sssignors snd the Assignee.
2. Where gooas are cold out OF
lOs o. which there ia q mortgag
! Efer the mortgage Was tXecuieo
such act would rot inYslidste the mort
gage, unless done with the consent snc
Knowledge Of the mortgage. .. Th,
court gave The following charge: "You
sre further Instructed that II you believe
from The evidence that j. T. Smith wss
tinso!vent and indebted to Cy T. Smith,
srd tha: he executed his note, snd the
mortgage useo in evidence by the defend
ant, ID Cy T Smith, and not for the pur
pose Of settling said debt. II any,
owing 20 Cy 7. Smith, on
to binter and delsy Iii
creditors in the collection Of
their debts, snt II you further believe
that the defendant herein had notice Of
such fact, il sny, either actual or coz
structive as hereinoefore explained, thei
you will find for the plaintiff snd 60 say
| by your, verdict" Held 1t is eviden
! Il at the omission OF the requisite notice
| Of Cy T. Smith to avoid the sale rendered
this obstruction erroneous. Reversed
and remsnded. Walker, J.