The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-04-18
JUDICIAL BEHESTS.
Abstract of Decisions Rendered by
the Supreme Court.

IAO III RA NSAA
The following cases we're determined by
the supreme court YESTERDAY:
Laura Parker vs.. s. A. Chancellor ct al,
from Tarrant county; reversed and rt-
manded. Henry, j.
A. Z. Fullenweider d Co. vs.. j. E. Long
moor and wife, from Milan county; af-
frmed. Henry, J.
VIM. Brotherton va. Levi Weathersby,
from Fannin county; reversed and re-
manded. Gaines, j.
VII. Randolph vs. the state, from
Travis county; affirmed. Stayton, @. j.
l.. p. Boettler vs.. K. z. Tendick, from
Bexar county; reversed and remanded.
StaytOu, O. j.
In the BOettler case, appellant con-
structed a stone building for Tendiok
under contract and specifications for the
work and material, all of which was to be
furnished by Boettler. The house was
constructed under the supervision of
architects, who gave weekly certificates of
the progress Of the work,
and payments we're made &C.
cordingly, including final payment when
the house was completed. Sometime after
the work was finished, the walls. cracked
and appellee demanded that appellant
make all necessary repairs at his own
cost, which appellant refused to do.
Appellant had given bond with surety for
the proper execution of the work, and ap-
pellee brought suit on that bond for re-
pairs he had made himself, claiming
$1,426.45 damages for failure to construct
the house according to contract He got
Judgment for 1926 45.
Defendant filed exception to the petit
ton, questioning its sufficiency in that it
did not specify wherein the workmanship
and materials used were not in accordance
with the contract. This exception was
overruled, and this ruling is assigned as
error. Held: That the special exception
should have been sustained on the ground
that the contractor should not have been
forced to trial until the information was
given.
The contention between the parties
to be as to whether or not appellee
is bound by the certificates of the archi-
tects SO that he cannot now say that the
work and material were not according to
contract, or on the other hand, that he is
not bound by them az to any matter about
which there was no actual controversy
submitted to and decided by the arohi-
tects and which conse quently may be con-
trolled by their evidence given on the
trial. Held This is not necessary to
make the architects decision binding on
the parties. Judgment is reversed and
the cause remanded.
In the Fullenwider case, arising under a
contract to furnish lumber and material
to construct residence, the property was
treated as homestead and the con-
trOversy arises under the lien law.
It was commended by appellees that the
aw does not authorize the lien upon the
homestead to be enforced in favor of any
person except the original contractor or
lis assignee, The court does not assent
10 this construction of the law. When
he wife has executed the contract in the
manner provided by the Constitution and
he Statute the rights and remedies of all
parties stand, and are to be proceeded
With, as to all persons, just as contracts
or othtr Improvements are directed by
he Statutes to be conducted. The only
distinctions are in the requirement that
he wife must be party to the contract
the homestead and in the mode
If it's execution. Article 3175 Of the Code
o provides, and it is not obnoxious to
ny constitutional objection.
The lien acquired, however, is in all
asses subordinate and never superior to
he terms of the contract. No original
is created by establishing
he lien. The debt of the owner of the
roper y as fixed by the contract cannot
'e modified, changed or enlarged by the
proceedings fixing the lien. The petition
n this case was insufficient b. Q use it
obtained no allegation that the owner Of
he improved property owed the con-
FACTORS anything at the date of, or at any
ime subsequent to, the service of the 10
ice of their claim. For the plaintiffs to
ecover under the allegations the
ourt would have to make a contract
or the parties instead of enforcing RENE
lies given by the law.-Judgment af
irmed.
In the Parker case, involving valuable
and near the city limits of Fort Worth,
mere was general denial and pleading of
he statutes of limitation of three, five
md ten years in a suit to try title and
or partition of the David Odom two
birds league end labor survey of land in
Carrant county, to which plaintiff asserted
title to one-fOurth undivided interest.
IN interesting issue was raised in the case
IN motion of plaintiff to suppress her
'wn deposition on the ground that an ln-
lue advantage WAS taken of her by taking
t without previous notice to her or her
attorney, and because the agent and attor
ley of defendants we're present and aid
ng in taking the deposition. Held. This
vas no ground for suppressing the dep
)sition.
As the case is now presented it may be
hat, under proper pleadings as to all the
parties, plaintiffs land can be allotted to
Ter out of those parts of the tract not held
~ limitation. Judgment reversed and
,ause remanded.
In the Brotherton case the suit was
brought by W. w. Brothertou,
Incestor of the present appellants, to re-
,over the land in controversy of Wealth
,rsby and others. The case was before
his court upon former appeal, and WAS
'eversed upon question of evidence.
The original plaintiff having died, the ap-
oellants now before the court made them
elves parties plaintiffs, claiming as his
heirs, and dismissed their suit as to all
he defendants except Weathersby.
The appellee claimed the land under
John Brotherton, brother of w. W.
Brotherton. Held An act which fully
recognizes and leaves unimpaired the
lights of the beneficiary is not necessa-