Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-04
THE HIGHER COURTS.
synOpsess OF Decisions Rendered at the Present
Galveston Sitting of the
Higher Courts.
SUPREME COURT.

D. " OtS1SIons OnIef JUSTICE. pFeSiOlnSs
Gaines and J. L. Henry. Associate Justices.
Correspondence of the Gazette.
GALVESTON, TEX. Feb. IL Hol-
liday vs.. A. J Holiday; from Brazos
county. BY correspondence the cause
was agreed by the counsel on both sides
70 be set for trial on September Is, 1855. .
! Appellant s counsel then left home for
Haskell county, having arranged to re-
turn by the 18th inst. After he had gone
| appellee's attorney ses.t a letter to
his home, informing him that the
/ Judge would not consent to set the case
later than the 10th inst. This letter was
not received, as the addressee was alb
| sent. The appellant himself was present
IN court on the Sth inst, and was ap
! pTised Of the date the case was set, but
| was prevented by sickness from attend
| ing the trial. His attorney returned on
/ the 10Th and moved for new trial set
! ing up the above facts in detail,
but falling TO allege facts
! showing that he had n
defense. Held: That the absence of de-
PENDANT (appellant) and his counsel from
the trial under the circumstances stated,
should not prejudice the right to make a
defense, and a new trial should have
shown facts supporting his pleadings and
constituting a meretorious defense.
Courts ought not, in such eases, to set
aside judgments rendered except upon n
showing which if true and unexplained
would change the result in a subsequent
trial Affirmed, John J.. Henry, A. j
Rosa Pellat VS.. George Decker; appeal
from Nueees county. The property in
suit was the homestead of Pellat and
wife from 1872 continuously up to the
filing OF this action. In 1880 PeIlat ana
wife executed TO Decker n mortgage on
the lots SO occupied, to secure debt of
$1,000. On April q, 1881, Pellat and
wife executed to Decker an instrument
purporting to be an absolute deed to the
lots. The consideration was the same in
amount as the debt. a paper dated May
/, 1881, was signed by all the
parties, in which Decker agreed to
reconvey the lots TO Pellat and wife when
they should pay him S34T0, evidenced by
their note due two years after that date
without interest, winch note they by said
paper bound themselves to pay. a lease
from Decker to Pellat and wife for two
years at $500 per annum rent was also
given dated May 2 1881. Prior to the
mortgage of 1850, PeIlat and wife had
signed, acknowledged and had re-
corded paper designating an
other lot as their homestead,
but which they had never
lived on and which was unimproved and
declaring the lots in controversy not to
be their homestead. These facts Decker
knew. On trial, the court, over objec-
ton, admitted in evidence the alleged
designation informing the jury that it
alone could not deprive the property sued
e. -.
be considered in connection with the
other facts. Held: That the admission
of this paper was error under the I'M
disputed facts OF the case, and that the
court should have given charge asked,
instrueting the jury in effect that it could
not operate as such designation and de-
prive other property actually used and oc-
cupied as homestead, of its homestead
character. Reversed and remanded.
Opinion by Stayton, c. J.
Tundel & Co. vs.. Rudolph Cess; appeal
from Cooke county on motion for re-
hearing. Appellants III Europe had in
their hands sum Of money belonging TO
appellee, who lived in Texas, of a com
age (francs) presumably that of the
country in which they lived, and the
value of which they may be presumed to
have known, winch they as bankers un-
dertook to reduce to American money and !
remit to appellee, but by mistake sent |
him 1858 IA more than he was entitled. |
This he mingled with other funds |
he had spent, part of the total |
on a trip north, and the balance, some /
$3.50, in the purchase and improvement /
of homestead. He had no knowledge |
of the mistake in his favor until after the |
money had been spent and invested. APP /
pellants, on account of alienage, were
unable to set up claim to the homestead /
as theirs by a constructive trust as hav-
ing been purchased mainly with
their money, but sought a
personal Judgment with lien
on the property so bought and its fore
closure. There was no evidence by
which the funds could be traced or iden-
titled. If it was shown, however, that
of the money received by appellee
through the draft sent by appellants
$3.50 was invested in his homestead, then,
under the facts of this case, a court
would not be authorized to presume that
to the extent of S6S3.74 this was money
belonging TO appellants, for there would
be no more reason for presuning this
than that appellee thus used $3.50 ~ of
that fund which rightfully belonged to
him. The total mixed fund was S1448 .0G
OF which S764 80 belonged to
appellee. This was more than was ex-
pended by him in the purchase and i'm
proyement of the homestead, and we
may as well presume that he used his
own money in buying his home, as that
he used that of appellants, of the money
so used it also appears that $500 was the
property of his wife. In all
cases the person asserting the trust must
clearly show its existence and extent.
Held. That appellants had not shown that
the property in controversy was bought
with their money, Affirmed. Opinion
by Stayton, C. J.