Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-30
THE HIGHER COURTS.
synopsss OF Decisions Rendered at the Present
Austin Sitting.

Austin Sitting.
Correspondence of the Gazette.
AUSTIN, TEX, May 2S.-J. A. Creager VS.. w.
S. Douglas. from Wilbarger county; opinion
by Henry, j. Suit by Douglas for undivided
interest in 5O7 acres OF land, on the allegation
that Douglas gave Creagera certificate to locate
which belonged to Williams, upon a contrac
that Creager and Douglas should divide the
compensation received. Plaintiff recovered.
Plaintiff having taken the deposition Of Will
liams withdrew them without authority for the
purpose of having the notary correct his certih-
cate, after which the deposition was returned to
the clerk without proper endorsements on the
second envelope. The court suppressed the
dispositions. but gave permission to Withdraw
them for the purpose of having them properly
returned. Held: In view Of the strictness OF
stGtu tory regulations on the subject the hrst
withdrawal was such an irregulRrity as to be
fatal to their use afterwards. The petition set
ting up an express contract, 1t was error to ad-
init evidence OF a custom that the locator a.
vides fee with the party procuring the certln-
cate. Some other evidence was objected TO as
being inadmissible, but as the case was tried
without jury and the court did not consider
the testimony objected to, the error, If error
il was, was harmless. The evidence was IN
sufficient, however, to warrant recovery by
plaintiff and the judgment is reversed and cause
dismissed
Elliott & Roe VS.. ~. & NJ. F. Lang, from
Nolan county; opinion by Henry, j. Suit with
writ of sequestration for fty-fve head Of cattle,
by appellants against appellees; the former
claiming title as vendees, under a deed OF trust
executed by NJ. G. & l.. r. Taylor, the former
owner OF the cattle. Appellees claimed as pur-
chasers from said Taylors under bill OF sale con-
yeyinE all cattle of said brand ''excepting sixty
five secured to Elliott g. Roe by deed OF trust. ~
After the last sale appellants were authorized to
put their own Identifying mark on their CATTLE
The Jury found for defendants, under the charge
of the court to the effect that the deed OF trust
was void unless the sixty-fve head were so seq
regated and identified as to distinguish them
from the other cattle of the same brand. Held:
This charge was erroneous. The deed OF trust
not conveying any specific cattle was not nulli-
ty, but as between the parties to 1t the contract
could be subsequently executed by designation
of the sixty five head. Defendants did not buy
said sixty FIVE head. They were expressly ex-
cluded, and before the cattle sold TO them could
be treated as belonging to them those OF plain
titfs had to be identified first. This was done
by putting plaintiffs distinguishing brand on
them. They then became 2ppellees' cattle, and
appellants were entitled to judgment. Reversed
j. G. GaaI VS.. ]. G. Townsend ct al, from Ell
Paso county; opinion by Gaines, ]. Appellant
was elected county commissioner Of FL Paso
county in 1855, and while holding this office he
was elected and accepted the office OF mayor of
Ysleta. Thereupon the county judge treated the
office of commissioner as vacated and appointed
Schultz, one of the appellees TO fill the vacancy.
This action was brought against the county
Judge and Schultz, to procure mandamus to
compel the former TO permit appellant 70 per-
form his duties as commissioner. The suit was
dismissed for want of proper parties and this
action was correct. The other commissioners
should have been made parties under the rule
20 be compelled by the writ of mandamus, all
persons charged with the performance OF that
duty must be made parties defendant" The
Judgment of the court could not be carried into
effect against those purties who were not de-
PENDANTS in the suit for mandamus. They
could not be held in contempt for refusing to
admit plaintiff as a member Of their body. a
Com r. PAS In view of another trial, in which
the question would arise whether or not by the
acceptance of the Office of mayor appellant ipso
facto vacated the office OF commissioner, we
deem it proper to give our opinion on the proper
construction of section 40 article Is OF the con-
stitution, upon which this question hinges.
This section reads: No person shall hold or
exercise at the same time more than one civil
office of emolnment, except that OF justice of the
peace, county commissioner, notary public
and postmaster unless otherwise specially pro-
vided. This means that an incumbent can hold
either Of the offices named, and e. the same
time any other office. Said article is copied
mainly from constitutions OF 1915, 81 and 66,
where il says that nobody shall, etc. las above,
except that Of justice of the peace. II is clear
that under this clause a Justice OF the pesce
might hold any other office L16. Tex, 50. J
The Office Of Justice Of the peace was made an
exception to the general inhibition, and the in
ference is strong that the present constitution
added some exceptions. II the language had
been, except those OF justice Of the peace.
etc - instead Of, except that of justice OF the
peace, ETC., - there would have been doubt as
70 zoe construction. But as It is, the words ex-