Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-09
qHE HIGHER COURTS.
synOpses of Decisions Rendered q. the Present
Austin Sitting.

4
/ remanded the first time because the evidence
| did not warrant the judgment The same evil
dence, substantially, is presented again and the
| Judgment is again reversed and rsmanded,
4. B, Johnson vs.. the State, from Mitchell
county; opinion by Wilson j. The omission
of the word county before the word court
in the order OF transfer was clerical error,
and the plea to the jurisdiction based thereon
was properly overruled. The court did not err
in permitting the certificate of transfer to
be amended by afixing the seal thereto.
The indictment alleges that the defendant did
unlawfully keep house for the purpose OF pub
lie prostitution, and as a common resort for
prostitutes and 'vagabonds.h 1he law which
was in force when the ofense was alleged TO
have been committed, declares q disorderly
house to be one kept for the purposes OF public
for prostitutes or Migrants. - BY statute
common prostitutes and professional gam
blers are Migrants, but such persons are
not necessarily vagabonds. The motion made to
quash the indictment should have been sus-
tanned to The extent of striking out the word vag
duced on the strength of the word vagabond,
there is no evidence that the house was kept for
the purpose of public prostitution. DEPENDENT
kept the house for the purpose of selling beer,
cigars, ETC., and fer a variety show, and
he paid license imposed by law for doing so.
He had in his employment women of the gen.
eral reputation OF being prostitutes, but they
were employed in the conduct of his legitimate
business Pro stitutes visited the place but for the
purpose of witnessing the performance and buy
ing such articles he as bad for sale In short there
was no evidence to show that the house
kept for the purpose inhibited by the law. Re-
versed and remanded.
Tom Montgomery VS., the State. from San
Saba county; opinion by Wilson, In this
conviction for unlawfully branding horse there
is no doubt about the branding. nor that il was
done without the consent Of the owner, but the
evidence fails to establish the gst of the action,
the intent to defraud. In fact the evidence
preponderates to the conclusion that the brand
ing was done innocently for the purpose of pro-
tecting the owner. Reversed and remanded.
N Z. Easton ct al. VS.. G. F. Wash, from
fra mir hv i
peal from justice to county court where the
cause was dismissed. One ground for dismissal
was because the appeal bond was not filed
within the time required by law. This ground
is not sustained by the record. Judgment
rendered October Is, 1888, and appeal bond ap-
proved October q, 1888, which was in time.
The second objection to the appeal was that
the appeal bond was not signed by appellant;
but this is not necessary Reversed and re-
Mayer, Sons & Co. VS.. j. O. Brown, ct al,
from Dallas county; opinion by Wilson,. Suit
the Texas and Pacific railroad company to re-
cover the value of a cask of wine alleged TO have
been lost or destroyed while being shipped over
said road from Shreveport. La, to Napo
court in Dallas county for SOS. 40
On appeal TO the county court the
state did not have jurisdiction of the action, as
the wine was lost i'll another state, the contract
for its transportation being limited to such
other state. This ruling was erroneous. The
suit was maintainable in Dallas county. rs app.
c. c.. sec. S24; 81 Tex, 432; 2s Tex, AZ Re-
versed and remanded.
Foos Manufacturing Company VS.. w. R.
Prather; error from Dallas county; opinion by
Wilson, J. Plaintiff in error perfected his APP
peal from Justice court on the same day when
the county court met. The transcript was fled
on February 7, 1889, the third day of the sue
ceeding term of the county court. Appeal was
dismissed because transcript had not been fled
in time. This ruling was erroneous, The term of
the county court had commenced when the ap-
peal was perfected and said appeal was there
for rzfr TrT1a at atrfTQ
to dismiss the appeal because the transcript was
not fled on the first day of said February term
was not maintainable until the first day of the |
next term after the return term of the appeal.
r. App. G. G. 2Si.] Reversed and remanded.
A. b. Tabor ct al. VS.. F. NJ. Cockrell. error
from Dallas county; opinion by Wilson, j.
Plaintiff n error, defendant in error and others
were sureties on note for 5000 executed by the
Texas state fair company. and on default OF the
defendant in error bought from the Texas state
fair company property to the value of S55, coo |
in as so much cash in the purchase. he thus re-
ceiving back with interest the whole amount of
money paid out by the sureties. These facts were
set out in the petition Of plaintiff against de-
PENDANT in error for recovery of him of |
his pro rata paid on the note. The suit |
was dismissed, general demurrer having |
been sustained and the plaintiff having de- |
clined to amend. The action was correct, for |
by the weight of authority 1t seems 10 be settled
In equity tnat q surety cannot compel con-
by co-surety unless it appears that |
the principal is insolvent, or that due diligence
has been used, unsuccessfully, to obtain from him
the sum claimed. The plaintiff here had failed |
to make the necessary allegations and |
the petition showed no cause OF action. |
The further proposition of defendant is also I'M
correct that, when the note of tho |
principal had been paid in equal proportions by |
the sureties the equities between said sureties |
ceased and each became an independent creditor |
of the principal for the amount paid by him, and |
although defendant in error received afterwards |
the full amount OF said note, plainif was not |
entitled to any part thereof. Affirmed.
A lAriR8bv. CODEa
county; opinion by Wilson, J. Appeal on |
Judgment recovered on Jnne a., 1889. was per
appeal was dismissed for misdescription of the |
the Justice transcript showing that |
Judgment was rendered on June 30, 1883.
The roof on the hearing ofthe motion was con-
elusive that the date given in the bond was the |
correct date OF the rendition of the judgment, |
and that the date in the transcript was clerical |
error. For this reason the cause was improperly |
dismissed Reversed and remanded.
A. L. West VS.. A. R. White 81 Bro. from
Dallas county; opinion by Wilson. Appellees |
Judgment on September Is, Iss9,
motion for new trial was filed October 1, 1883, !
but the motion does not appear to have ever
bond was filed in the county court, the |
appeal was dismissed. because the ap-
peal bond had been fled in time: This
the time required by law, that is within ten days
after the last day on which the motion for new
trial could have been acted upon. 3 App. G. @.
l05. Reversed and remanded.
John Reagan VS.. Wooten & Bohannon ct al,
from Graysou county; opinion by " illson, j.
Suit by appellant to recover OF appelleeg and
their sureties $500 for breach of the bond as
liquor dealers by selling liquor TO her husband
after she had notified them not to do so. The
petition alleges that she notified defendants
by having deputy sheriff read to
them a notice signed by her. An exception on
the ground that the petition did not show that
the written notice was delivered to de-
PENDANTS was sustained. This ruling
correct. The statute does not prescribe the
mode OF service in such cases, and
in the absence OF a statutory direction the rule
is that the service must be personal one, by
either the original notice or copy
thereof; merely reading the notice TO the person
to be served is insufficient Wade on Notices,
$780, 1871. Affirmed.
opinion by Wilson, j. On q eertiorari
from justice court appellee moved at the retuIn !
term to dismiss same. which motion was dis
missed, the record not disclosing the reason for
his dismissal. At the next term Of the court
the motion was renewed, over objection of mp
pellant was sustained. As the matter presents
Itself to us the motion was made too late, viz:
after the return term. The dismissal OF the GER
tiorari was error. Reversed and rema uded.
John Wells VS.. the State, two cases from Clay
county; opinion by White, P. j. Both cases
are prosecutions for willfuly driving cattle from
their accustomed range, and the facts are the
Same. Appellant had charge Of large
pasture and the person whose cat
tie were turned out claimed through his
father few acres inside said pasture, which
were fenced in by agreement. Denison, the
owner of the COWS, had repeatedly been refused |
permission to turn his cows into said pasture. |
and by instruction Of his employer appellant
drove the cattle out of the PASTURE some three