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

| upon the conduct of appellees, subse
| quent to the sale, in making payments
and keeping silence, as facts from which
an estoppel could be inferred. 5. The
testimony as to the value of adjoining
lands was properly excluded. Reversed
and remanded. Walker, J
o. 7. Lyon VS.. Max Elser ct al; ap-
peal from Hill. Trespass to try title.
Appellant sold one Eastland lumber to
build on the premises in controversy in
1883, money for same to become due jan
uary l, 1881. June 20, 1884, Eastland
executed his note for the lumber, recit-
| ing therein that same was given for lum-
ber. On August 81, 1884, appellant for
the purpose of fixing his lien as a lumber
man made affidavit before the county
clerk that the note was given for lun-
| Der, and in constructing the house on the
premises in controversy and recorded same
in record books for mechanics lien etc.
The law gave appellant six months
within which he could file his ''sworn
| account, - and thereby fix his lien and
evidence of it, but this was never done.
The written contract to be filed for record
to secure a lien of this kind, is one by
virtue of which the material has been
furnished, and not any subsequent con-
tract entered into between the
III It.pctU " INC lllftlICl
TGO Tex, 7O-GG Tex, 96-46 Tex 500.
A failure to. record such "sworn ac-
count in case of verbal contract, with
in six months, has the effect of abandon
ing the lien. T6G Tex. 90. No errors.
Affirmed. Walker, J.
st. Louis, Arkansas and Texas Railway
VS.. L. WEIGH; appeal from Smith. Suit
by appellee for damages for personal in
juries. Appellee was foreman of Il bridge
gang in the employ of appellant. About
CLOCK in the morning on the day of
the accident he was asleep in the bunk
of a sleeping car, provided by the
company for the purpose, which was
lying onsa side track of the railway i'll
the town of Gilmer. At the time men,
toned the employees of appellant, operat-
ing Il freight train on its road, negli-
gently ran the train rapidly upon the
side track, and struck the car upon
which he was sleeping with such vio-
lence that he was thrown from his bunk
and seriously injured. He and the en-
ployes who caused the injuries were en-
ployed i'll different depart
ments of the company's
work His employment was
in the bridge department, and he re-
ceived his instructions from the superin-
tendent or management of that depart
ment; while the employees on the train
were working in the transportation de-
partment and were under the orders of
the superintendent. 1t appears from the
testimony that the plaintiff was subject
to the orders of the company to go out on
duty at any time. There are two ques-
tons involved: Was appellee in
jured by the negligence of
fellow servant? Was he on duty
at the time of the accident?
l By the great weight of authority, we
must hold that the employees operating
the train which caused the injury to ap-
pellee were the fellow servants of his,
and he can not recover under the evil
dence 3 We further hold that appellee
was ON duty at the time of the accident.
He was subject to the orders of the COM
pany at all times and at any hour might
be called upon to go to work. Reversed
and remanded. Gaines, j.
Coleman & Nelson vs.. Fred S. Lord;
appeal from DQnley. The sole question
presented in this case is whether or not
the land board had authority under the
law to raise.the minimum, named in the
act OF April. II, 1888, for the lease of the
university asylum and school lands. The
regulatiOns'ef the board made previous
to appellants bid reserved "the right
to refuse to cpnsummate a lease
for any reason they might deem
sufficient - Heldt, We are of the opinion
that it was competent for the board to
make a regulation reServjng the right to
reject bids i'll order to secure fair cOmpe-
tition, and thereby protect the rights of
the state. 1t required the assent of both
parties to complete the transaction, and
the board having reserved the right to re-
I, ,,Il tod II
of appellants, we cannot say that any er-
rOr was effected. There was no error i'll
the court below. Affirmed. Gaines, j.
COURT OF APPEALS.
Correspondence of the Gazette.
TYLER, Ten, Dec. 14.-William Cald- |
well vs.. the State; appeal from Fort |
Bend. Conviction for theft of cotton.
There is no statement of facts in the |
record, nor are there bills of exception. !
1t sufficiently appears that appellant was |
present when his ,inotion Tor a 1iFf ial 4
was acted on. Tie indctmeifkds s3sfi2
cient, and there is no reversible.s Error
apparent of record. Affirmed !xSNill- \
son, j. Fs&F GSH
Thompson & Cleavinger vsSsBrown Vt
Kemper; appeal from Tarrant. On
motion for rehearing. This motion was
IIOl liltu W lllllu HIlttI bdNS DIS IGtl ulI GU
by law, and because no sufficient ground
is shown why same was not filed in due
time, and because same does not comply
with law the motion will be dismissed.
Dismissed. Wilson, j.
Frank Jones VS., the State; appeal
from Rains. Conviction for murder in
the second degree. The charge of the
court was full and correct and the evil
dence fully sustains the conviction. There
is no bill of exceptions, and no error ap-
parent of record. Affirmed. Wilson. J.
Jack Bray VS.. the State, appeal from
Rains. Conviction for murder in the sec
ond degree. The indictment is good,
and the charge is not erroneous. The
facts adduced in evidence fully sustains
the conviction. There was no material
error i'll the court below. Affirmed.
Wilson, J.
j. 7. Brooks vs.. Jake Lichtenstein;
appeal from Hopkins. On motion for
rehearing. The charge of the court be-
low was not materially erroneous. 6L4s
Texas % 1 There is no sufficient rea-