Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-01
THE HIGHER COURTS
Synopses of Decisions Rendered a. the Present
e Austin Sitting.


~ Austin Sitting.
| Ce@sspondence ofthe Gazette.
= kUsT1N, Tex, May SO.-Gulf, Colorado and
4 Santa Fe railway company W. T. Hudson,
from johnson county; opinion by Stayton, G. j.
Appellee stopped with drove of cattle for the
night about half mile from appellants road on
the highway. During the night storm came
up, the cattle stampeded, ran, Notwithstanding
all efforts the part of appellee's servants, to
| appellants road. The road was not fenced and
number of the cattle were killed and wounded
by passing train. The defendant tried to prove
that an ordinary wire fence would not have
checked the stampeded cattle. Held: This
evidence was properly rejected. The clear
meaning of the statute is that
the railroad shall be liable for the
| stock injured or killed by the cars, unless the
| company proves that the road was fenced; in
| which event plaintiff shall not recover. unless
the injury resulted from want Of ordinary care
| on the part OF the road. Other exceptions need
not here be considered. 1t would be incompe-
tent for the road to show whether or not the in
Jury would have occurred had the road been
fen ced All instructions to the effect that if the
| road had used ordinary care, it would not be
liable, were properly refused. The road bein 6
| untenced, the company was liable, as ordinary
care does not then exist. It was claimed thSt
some of the injured cattle died afterwards for
| want of proper care given them by appellee; on
on defendant. The Judgment under the evidence
is not excessive. Affirmed.
Mary E. and D. G. Freeman vs.. Harvey Haw-
kins ct al, from Denton county; opinion by
Stayton. C. ]. Suit by appellants for the re-
covery OF tract of land patented TO James
Rose; appellants claim under Lewis and Mar
garet Rose, father and mother of James, who
! died without issue. Defendants claimed under
1 some other woman as the mother of James
| latter claim the finding would have been con-
elusive of the case. but, it not appearing from
questions raised win have to be considered.
| The court admitted in evidence
s e. apPsf a Robinson By dsass
for the land in controversy on citation by publi
| cation. Mary e. Robinson was the name Of
| Mary E. Freeman before her marriage, but at
man. This judgment should have been ex-
| cluded On her marriage the law conferred on
! a citation by publication requiring Mary e.
| Robinson to-eppear was not sufficient 70 give the
court Jurisdiction to render Judgment that
would bind Mary E. Freeman. It might have
been different if she had been served personally.
| Appellants to prove pedigree offered petition.
| answer and Judgment in 8 suit brought by Lewis
| and Margaret Rose against Thomas Collin en-
trely different from the matters involved IN this
| case. The averments IN that suit were essen-
| tally self-serying and could not be offered for
! the purpose stated, and the court correctly ex-
cluded this as evidence. [Starkie on Evld. 459,
Wharton on Evid. 2l0.l Reversed and re-
| John Allen ct al. VS. III. Koepsel ct al, from
Guadalupe county; opinion by Henry, j.. The
| land here in controversy lies between slough
\ and the Guadalupe river, and plaintiffs claim
under a grant which calls for the river. but de-
PENDANTS clam that the slough instead OF the
| river was measured by the surveyor. The strip
1etween the slough and the river was located
kf4pon with certificate by one Saunders The
4 instruzzent offered By defendants to prove imi-
| tatia<f< showed privity between Saunders and
| Thezle. It was clear agreement, showing that
Eaels held under Saunders and justified the
! charge of the court to tnat effect. The court
also charged the jury that in determining the
extent OF the grant they must find the lines as
run by the surveyor, If they along the river.
TO find for plaintiff Il along the slough, for de-
f6ndant, although the river called for in the
&ant. This charge was correct. Affirmed.
Llano county vs.. ". T. Moore, Jr-, from
I Llano county; opinion by Henry, ]. Llano
county for building courthouse issued bonds,
sold them, deposited the money in bank at
| Austin and as the contractor earned the money
| the county Judge drew said deposit Appel
| Ice the then county treasurer had no connection
with said money at any time.
And when he went out Of Office
! he made Z settlement With the county