Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-11
THE HIGHER COURTS.
Galveston Sitting of The Su-
preme Court.
SUPREME COURT.

leans Railroad Company; appeal from
Orange county. The original petition in
the case was filed in 1882 by appellants
as wife and minor child to recover dam
ages for the killing OF c. B Berry. The
grounds alleged for reversal were refusal
TO grant continuance and absence Of
plaintiff at the trial and oral charge OF
the Judge. Held: That an application
for continuance should state facts ex-
pected to be proved and due diligence in
obtaining the witnesses sought. The law
does not require district Judge to charge
the jury unless requested by one of the
parties. II he does charge Il should be in
writing. Affirmed. Opinion by Henry,
a. j.
s. A. Daniel ct al. VS. C. L. Watson
& Bro; appeal from Freestone county.
This action was brought TO recover a
balance alleged TO be due on prOmis-
sorry note given for the purchase of land.
The petition prayed for foreclosure on
200 acres without identifying them The
/ court below rendered Judgment for the
| balance due on the note and established q
lien on the entire 703 acres, which il di-
rected TO be sold in satisfaction of judg-
ment. Held: The petition not furnish
ing basis on which the relief sought
/ could be granted, il was error 10 enter
| the lands described in it; and the judg-
ment is oppressive in that it enforces a
/ lien against land on which plaintiff ex-
| preSsly assumed the lien had been ex-
/ tinguished, and against which he sought
not to enforce any claim Reversed and
remauded. Opinion by Stayton, c. J.
| Missouri Pacific railroad company vs.
| Frank Watson; appeal from Leon coun-
/ ty. This suit is brought TO recover dam
I
whilst entering appellant car. The
| evidence shows that the steps of the car
were three feet from the ground and re-
CURED to be reached by Il platform which
appellant should have provided, but did
not. The court say, the husband may
prosecute the cause of his injured wife TO
final judgment as though the wife had
never been joined Held: Where q pas
senger has carefully used the means pro-
vided by the carrier to enter its cars ut q
regular station, the danger of attempt
ing to enter would have to be very ap-
parent even to person without expert
ence in such matters. To justify this
court in setting aside a Judgment en-
tered on the finding of a jury, under a
proper charge, that the person was not
gully of contributory negligence. AZ
firmed. Opinion by StaytOn, G. J.
Creacy Kinlow VS.. Anna KinloW ct al;
appeal from Washington county. Tres
pass to try title. John Kinlow. brought
this action against Anna Kinlow to try
title to a lot in Prenham. He died while
the suit was pending and Creacy Kinlow,
his wife, interviewed rs surviving
widow and sole heir of the original plain
tiff. The following facts were found by
the court: Some time after emancipa-
ton John Kinlow and the defendant,
Anna Kinlow, formerly Anna Tarver,
both of them previously slaves in Ala
bama, commenced living together as
man and wife under some sort OF cere-
mOny or agreement but not IL
censed. They moved to Texas
in 1871, lived together and repre-
sented themselves and were known as
husband and wife, and raised children.
While so living and cohabiting together
the land in controversy was purchased
and paid for with money earned by the
labor of Anna Kinlow, but the deed to
the same was taken in the name of John
Kinlow. On the other hand, Creacy
Kinlow was married according to the
forms of law.
The holding of the court below was I'll
that John Kinlow and Anna Kinlow are
to be considered as having been legally
married. ~ The marriage between
John KinlOw and Creacy Davis was a
nullity, and she can take nothing as his
surviving widow C3] The property in
controversy was the community property
of Jonn and Anna Kiplow,
and Anna Kinlow as suryiv-
ing widow is entitled to the same.
If appellee was the lawful wife of John
Kinlow, then appellant 8 marriage with
him was void, and not being his widow
she cannot claim any part of his estate.
If the appellee was not his lawful wife,
then upon the conveyance of the property
to her reputed husband a trust resulted
TO her father. In either case the judg-
ment is affirmed. Opinion by Gaines, A.
J.
Moody heirs vs.. Valentine Moeller ct
al; appeal from Victoria county. Tres
pass to try title. Both parties claim I'M
der deeds from Victoria county. Appel
lees held by sherlff's sale, appellants by
s sale before the United States
Held: That sale by
marshal before the door of the United
States courthouse instead of the door OF
the courthouse of the county where the
land is situated is not only voidable but
void. ESinclair VS.. Stanley, "a Tex,
81 j Affirmed. Opinion by Gaines,
A. j.
J. H. Poe vs.. the State; appeal
from San JacInto county The district
tax collector, and may require new
bond. a reasonable time, however,
must be allowed for obtaining the same
Any OF the following grounds is sufficient
to suspend or remove q tax collector: l..
To wilfully refuse to comply with the
orders of the county commissioners
court. 2. To wilfulIy fail to pay
over money collected when prop
srly demanded. 3. To wilfully
fail to collect occupation tax. 4. To
refuse to make settlement of collec-
ion at proper time for county taxes
previously collected by him. Held: That
each offence is sufficient to justify the re-
noval Of public officer and the judy
nent of the court below is thereby
affirmed. Opinion by Henry, a. J.
Black Jack Grove.
of the Gazette