Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-03-21
THE HIGHER COURTS.
synopses of Decisions Rendered at the Present
Galveston Sitting.
Commission of Appeals.

Acker, P. J.; Collard, Hobby, a. ].
Correspondence of the Gazette
GALVESTON, TEX, March l9.-w. IT. Osborne
ct al. VS.. Robert Osborne; Red River county.
Partition. Reversed and remanded. Acker,
j. The provision of the constitution, article
Is. section 50, relating to the descent OF the
homestead on the death OF the husband or wife,
or both admits, in our opinion, of but one con-
struction. After the death of both parents, the
use and occupation of the homestead by the
minor children, to protect it from partition at
the suit of other tenants in common, must be
through the agency of guardian, under author
'ity and by permission of an order Of the probate
court having jurisdiction. [See Hudgins VS..
SAMSON, ~ Tex, 229. When partition of the
homestead is sought among the children of the
deceased, and it appears that the minor has
never had guardian, and the probate court has
never determined the right to occupy it, the
court should arrest the proceedings and suspend
farther action in the case until the county court
shall appoint guardian and determine whether
or not he shall be permitted to occupy and use it
for his ward.
Joe NJ. Sam VS.. Hochstader Bros; second APP
peal. Reversed and remanded. Collard, A. J.
The supreme court has decided that the de-
PENDANTS, under Art. I24S Of the Revised Stat
utes, are deemed TO have appeared at the next
term Of court after motion to quash service was
sustained. York VS.. State, % Tex, 652.
T. /. Smith, extr.. VS.. A. E. Westan. Al
fr1ned. Conard, A. ]. 1t is insisted that Pane
was not an innocent purchaser, the considera-
ton being antecedent debt. 1t was debt
due by one Bates TO Pane, the grantee, Bates
at the same time suTrendering TO Westan, the
grantor, a claim against him for the same
amount. This we think valuable considera-
ton, supporting the plea of innocent pur-
chaser. Pane had no notice of the former con-
veyance 10 Masterson. layers VS.. Duprey, p
Tex. 593-607.l
J. Nj. Rogers VS.. Galveston City Railroad
Company, Damages. Affirmed. Collard. A J.
When servant has knowledge that the master
had furnished defective implements If he con-
tinue in the employment in which such defective
implements are used. he must be held to assume
the risk incident to such service il is attempted
to be carried on. Texas Pac. Ry. Co. VS.. Brad
by these established principles, we cannot see
how plaintiff can recover.
Texas and New Orleans Railway Company vs..
Mary Crowder; fourth appeal. Reversed and
remanoed. Hobby. A. 1.-The true rule in this
class of cases is that the servant seeking to re-
cover for injury, takes the burden upon him
self OF establishing negligence on the part OF the
master and due care on his own part. - f63 Tex,
60Sl Viewing the facts of the case before us by
the light of this rule, we think the charge re-
quested. instructing the jury to find for defend
ant. should have been given.
T. n. Rumason VS.. Moses Lobe & Son; Harris
county. Reversed and dismissed. Hobby, A. J.
The court erred in not sustaining defendants
plea of res adjudicata, which was satisfactorily
established by the evidence. The former
judgment pleaded in bar, was recovered by
plaintiffs against the defendant N n court of
competent jurisdiction. and uDon the same in
debtedpess as that sued for in this case
There Is no evidence 70 support the theory that