Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-11
COURT OF APPEALS.
Present Tyler Sitting of the APP
pellate Court.

| Correspondence of the Gazette.
TYLER, Ten. Dec. S-Albert Jackson
VS.. the State; appeal from Smith. On
emotion for rehearing. On former day
of the term this case was affirmed, and
having had no sufficient grounds pre-
sented why that decision should be set
aside, the motion for rehearing is over
ruled. Rehearing refused. Hurt J.
Albert Balm vs.. the State; appeal from
Hopkins. Conviction for murder in the
first degree. The evidence is ample to
tustain the conviction. There was no
material error in the charge or any ruling
of the court below. No reversible error
Affirmed. Hurt, j.
Spence Ward vs.. the State; appeal
from Hopkins. Conviction for murder
in the second degree. None of the bills
of exception show error of n material
character. The charge was correct and
presented the law as applicable to the
case. No reversible error in the court
below. Affirmed. Hurt, j.
Taylor Manufacturing Company VS..
Joseph H Brown; appeal from Tarrant.
This case was filed at this branch of the
court i'll August last. 1t appearing to the
court that civil cases from Tarrant county
are returnable to the Austin branch of
this court, and that we cannot entertain
jurisdiction of this case at the Tyler term;
the same will be forwarded to the Austin
term, 1889. White, P. J.
T. r. Anderson vs.. s. T. Wiley ct al =;
appeal from Ellis. Suit by appellant to
recover on promissory note given by ap-
pellees, together with a steam boiler and
other apparatus to appellant for steam
engine which was warranted. Appellees
plead failure of consideration, and in
recOnvention for the boiler, etc. Verdict
for appellees. !. The court did not err
in charging the jury that if they believed
from the evidence that the note for 5000
was given for an engine, and that said
engine was worth the money agreed to
be paid, they would find for
plaintiff. If this be error it
is in favor of appellant (plaintiff
below and he cannot complain. 2. In
civil case, where party objects to the
charge of the court below, in order to
have same revised i'll this court, he should
request special charge on the point in
question. The Judgment below was for
s. 7. Wiley and John Wiley, the latter
a surety OH the note sued on. The judg-
ment is reversed and here rendered in
favor of S IT. Wiley against appellant
Reversed and rendered. Hurt, J.
Gulf, Colorado and Santa Fe Railway
VS.. Abney F. Stout; appeal from Denton.
Suit by appellant to condemn the right of
way over the land of appellees. l. A
proceeding for condemnation is not one
by the land owner to have an assessment
made of his damages or compensation for
taking his land; but it is proceeding in
stituted by the railway company to as
certain what is just compensation for
the land sought to be appropriated, and
the railroad must take the initiative, and
should have the right to open and con-
clude the case. The court erred in al
lowing appellees to open and conclude the
case. Reversed and remanded. White,
p. j.
City of Sulphur Springs VS.. W. r. Har-
ris; appeal from Hopkins. Suit by ap-
pellee to recover damages for injuries
sustained while walking along the streels
of Sulphur Springs, said injuries being
caused by appellee being struck by
piece of timber projecting over the side
walk. Suit was instituted in February,
1886. Judgment by default was taken
in February, 1888. Immediately after
judgment by default was taken, appel
liant moved that appellee give bond for
cost which was overruled. a motion for
a new trial was overruled and this appeal
is prosecuted. l. The motion to make |
appellee give bond for cost after judg- |
ment by default was properly overruled. |
2. The petition alleged that appellant |
was a public corporation, and that it had |
charge of the streets; that the citss7
and wilfully permitted the1b- |
'truction to remain upon the sidewalk,
appellee was injured inS the |.
iight time on his way home, wheHa,hSs
was struck in the face without negligence |
IN his part, whereby he was greatly in 1
ured, etc. to his damage $500. Held; 3