Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-20
THE HIGHER COURTS.
synOpses Of Decisions Rendered at the Present
Austin Sitting.

Austin sitting
Correspondence OF the Gazette.
AUSTIN. Tex June IA Dittmar VS.. j. "
Dignowity, from Bexar county; opinion by
stayton, @. j. Suit in trespass to try title
brought by appellant, claiming under deed from
the city of San Antonio, made in 1s42, against
appellee claiming under a grant OF the land
made to Ignacio Villa Sonor in lsls- the city
claimed title under grant from the crown Oh
soain made in 1913 or 1874 to the municipality
that afterwards became the city OF San antonio
The grant is lost and the testimony on lts char-
acter end extent is very meager-we do not luui-
cialiy know its character. Vhose parties claim
ing under the grant of 1918, which seems 10 De
perfect in its particulars, have been IN posses-
sion for more than forty years t6e cry e
asserting title during that period. the CITY was
established in 1913; this Is fact histoflca
well established, and territory was set apart
for its inha btants, but it does not follow tnae
the title SO vested in the city as to deprivs 'ne
Spanish government from comforting tltle 10
parts on individuals; this was frequently Sonet
and we are not prepared to hold that the span
ish government did not have power IN 1o4o 10
make the grant under which appellee CLAIMS
The Judgment OF the court below IN IaVoE Vi uS
| PENDANT is affirmed.
| company, from Bosque county; opinion oy
| Gaines j. Suit by appellee for one-haf inter
est in the land in controversy and for partltlon'
| Plaintiff claimed under execution sale. Detenu-
ant had occupied the land with ms VIE, VINO
| had died few months before levy OF execution,
| and one-half was conceded to belong 20 R n
| heirs Judgment for plaintiff and decree toE
| partition. This judgment IS erroneous; some OF
| the descendants of Mrs. Holloway were not par,
] ties to the suit, and it is well settled tnat an
tenants in common are indispensable parties 70
| a partition suit,-a final Judgment does not cure
such defect. We will say here that II IS useless
| incumbrance of the record to set out written
documents at length, about whlcn ther Us Is ny, nv
| controversy, and If such instruments are eA
| cepted to as unnecessary membranes, they
| should be stricken out. From the meager al
| legations regarding the execution under wnlch
| r,a claimed cannot
! same was void or not. We Will say, however,
| that under Article 1857, Revised statute; tne
clerk of the district court is authorized without
| further action of the court to issue execution
| both against the original defendants and the
| suraties on the supersedeus bond, against whom
| tne supreme court rendered Judgment. Under
| the facts the court did not err In disregardlng
| the pleas of limitation. II the sherlns SAFE was
| in fact made after return day OF the execution,
| then the sale was void The testimony OF
| George was properly admitted as circumstance
, IN sb6y Abandonment of homestead, Proof OF
iDsnIvencv Of Mrs. Halloway, in order to claim
200 acres as homestead, was properly excluoeo,
because it did not appear that either she OF ner
allowance to the guardian ad Item is to be
taxed 40. inst the parties whom he represents.
Reversed and remanded. ~.
| John A. Jones VS.. the State, from Navarro
county: opinion by Wilson, j. This was con
| yiction of murder in the second degree mainly
| based on the admission of defendant that ns
| Titled the marty but avowing that he did so IN
| self-defense. This statement that the kllllng
| occurred in self-defense was not dlrectly con,
I
| was refused an instruction to the effect that the
| whole of the admission introduced by the stat
should be considered by the Jury, ana tne 80
is bound by them unless they are shown t9oe
] untrue by the evidence. In TINS case, Wnere
| the terminating evidence consists almost en-
| tirely of the admission OF the defendant, ehe
| excuipatory portion of the stateme emit, not shown
| to be untrue, should be considered with IT. ana
the instruction asked tor . shoulo nave Oeen
Ex Psrte T. J. McCockle ct al, from Hop
kins county; opinion by Wilson, j. Applicants
were arrested on a warrant issued by magls-
trate of Hopkins county, and pending the pro
ceeding before the magistrate they SUED OUT the
writ of habeas corpus before the district Judge.
0rosecnte This appeal We hold the writ should
not have been granted while the proceeding pc
fore the magistrate was penang: ne na9 lutas-
fere wi tn him until after examining trial he re-
fused to discharge the defendants. Dismissed.
| LAWS Cooper VS.. the Stale, from Wilbargel
| county: opinion by Wilson, J. On one count
| in the indictment charging defendant with re-
ceiving horse, knowing tne same g nave t peer
some other person OF the horse, was, over de-
Z | ,epdant's objection. permitted TO read IN evil
: idence an indictment charging one Hlll with tht
9 theft of said Lorse and judgment of conviction
| and sentence. For the purpose stated TINS eVl
a dance was properly admitted ana II Is NO oDlec'
tion that the testimony was admitted after de
fendant had closed his testimony, because i
g does not appear that the trial Judge abused hii
discretion to the injury OF deien aans, mere
the law of principals in crime: IL was for TINT
iury to decide whether the testimony OF the &C
con1plice was sufficiently corroborated 70 war
ant a conviction In our opinion, there wa
= some evidence to corroborate the accomplce
:, which formed properly oasis Ior me instru rue
q ton The charge Of the court is free from erro
IL eYrentinp in this, that in effect the court sal
that the personal, exclusive, unexplained an
recent possession Of Sne sydence to
the conviction for theft Of said horse. The N
}. struction should have been that such possesslo
Q was mere circumstance to be considered by IN
= w., II, Connection with other evidence. z
Ann 476 Reversed and renamed.
ID City of McGIegor vs. Q. =: T1T n from S SG
nv appellee for $40 for services rendered, y
which the city answered by generel oeF5aA n
nIaa in recouvention for $1,000 for prey e4l.RS "a
ppegotiation of certain bonds issued the c1rs
T'his plea was stricken out on exec ption- S.t
= ment for appellee for $3.50. the lnagme.n NJ
| inc execution to issue against the cltt ~
I'd eTeeption to the plea was properly sustain e
becepse appellant sought to recover damage
because OF appellee suit 70 I vas
substantial variance between the proceedings
IN fine council as read by appellee and ms aIiegi
Id tions in regard thereto. The letter OF hAIi w
:. nronerIv admitted, as it was written by autho
- ftv of the council and WAS its act " Wa cry
J. however to award execution against the cs..
Sor the general rule is that execution cam
issne AGAINST municipal corporation ana tne
is no statue in this state proVidlng otnsrmIs
The Judgment IS reversed anu ~ III ~, \,
nj and xendered so as to make 1t conectiple Dy o'
~ cnnrse of law as IN such cases PROVIDED.
90 3. G. stirman vs.. F: II. Turner from Lam n
/
ht Std for and obtained from the county cou
in the writ of habeas corpus for his az
an child alleged to be illegally festraln t11s OF
rs liberty by appellee. Upon hearing me Pr
et cssdi1p was dismissed for want of iurisdict
nc TO issue the writ. This ruling was eIroneol
iis Comfy Judges are empowered 70 issue ths "
~ babeas corpus in cases where the omen
charged s within the OF T I9s Sa
t okher in all cases in which the constituti
bss not conferred the power on the d,str !.
E. | court re- c. P. Art. 74-lso-l IN cases nk 80 I
one before us the constitution has not CONFER
ay the power to issue the writs upon the dis ).
ed courts [const. Arr. Sec s.; Even " n. y
~ RI;eh tbat nrocess is necessary to enforce
For inrisdiction this case would come WITHIN !
~ scope Of such power, as county coeI.s nass q
eraf Jurisdiction of the persons ano estetes
minors and the father is the natural guaIol 2
,ne his minor child and has the gos % Ss ro
- ths county court Reversed and remanded-
the Moore Bros. vs.. Cosley 8 Brown. from >
Lehman county; opinion ~ ~iilson' i.