Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-05-03

tending to show that the car.Wheel ran
lover the foot, and thst the brake was not
applied; there being other evidence be-
fore them tending to show that when the
brake is applied the car-wneeI will not
roll, but Will slide. Held: That this
was error; physical facts are always ad.
missiole. and when the object itself can
be brought into court and exhibited IL Is
more satisfactory than description of 1t
by witnesses who had iuspectedit outside
Of the courthouse. Reversed ard re-
msnded. Maltbie, Commissioner. Adopted
May l, 1888.
Stuart ct 81. vs.. Anderson ct al; from
Falls county. This is sn action of tres
pass to try title. The title of both parties
comes from James Humphries IS common
source, the appellants by direct convey
ance from him; the appellees claim
through 8 payment against Humphries,
upon the validity of which the title de-
ponds. The judgment against HUMPHREYS
was obtained without personal service
but By publication, and an attachment is
sued out, and seizure Of property under
| 1t, HUMPHREYS being q non resident; the
suit against HUMPHREYS WAS in 1867 in the
District Court of Travis county; the pc
tition alleged that HUMPHREYS WAS 8 nom
ASoAoShs puH hHo LII L al1o SOuueb
and an INDICATED balance of certificate in
the General Land Office at Austin; after
the service by publication WAS made and
| the writ OF attachment levied and returned
the plaintiff in the suit amended and set
up new cause Of action; the amended
petition contained no prayer for
citation, but that plaintiff be allowed
the oeEefit OF the writs and citation is
s1ed on the original petition, and have
Judgment on both the notes, one set up
IN the original as well as the ore in the
amended petition; the plaintiff had judg-
ment on both notes, on the day OF the
filing Ct the amended petition and the at
rsched property ordered to De sold to
satisfy The same; the sppellees clsimsun-
der this payment. Held: II q defendant
be not brought before the court by pro-
cess which gives Jurisdiction over his
person, and do not voluntarily appear, 10
Judgment Can be rendered ths. will bind
MIN personally, Ia IN ordinary action Of
debt. on the mere fact that ne has prop
erty within reach Of the process of the
court. The Judgment rendered is an en-
tiretY, and 1nen the court had no power
to render it. Ii o valid Judgment might
have been rendered On part Of the
cause OF action, it was not done
nor was the court asked or & per-
mitted to do SO. The judgment is null.
The judgment is reversed and rendered
for appellants. StaytoD, Chief Justice.
International and Great Northern Rail
way Company VS.. Frederickea Kuehn ct
al, from Comal. The widow and children
Of julius Kuehn sued and obtained iudg-
ment against the appellant for negl1- |
gently killing the said julius. Held
That the verdict was against the tesii.
mony upon the issue of contributory
negligence. We can but hold this. the
testimony negatives proper care aud
shows culpsble negligence on the part OF
deceased, without which he would not
have been INJURIES. Since this case was
appealed, TINS court has held that the
defendant was not released from liability
by lis lease Of its road to another COM
pany. Reversed and remanded. Walker,
Justice.
Simmons Hardware Co. ct al. vs.. Kaui-
man Runge; Milan county. The ap-
pellant and other creditors accepting
under statutory assignment made by
Thomas j. Hudson & Son, brought this
suit in the name of C. E. Wynse, the as
signee, he having refused to DO SO, to set
aside certain deeds of trust, made to
Kaufman & Range, alleged t. have been
executed, by the assignees in contempla-
tion Of tie assignment; after suit was
brought Wynse WAS removed, and the
substitute assigness introduced in the
case, adopting the petition Of the COM
planning creditors. Held: First. In Or
der to avoid transfer or preference on
the ground that it msde, or given in con-
travention of the provisions of section
Of the assignment law, the transfer must
have been executed or the preference |
given with the intent then formed to make |
the assignment, and that it will not be
sufficient that the assignor at the time |
had the assignment under consideration.
This Is question Of first impression. At
frmed. Gsins, Justice.
ERnN w HA ruE lA&pEI