Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-23
THE HIGHER COURTS.
synopses of Decisions Rendered at the Present.
Austin Sitting. -

Austin Sitting.
CorEesIendepee Of the -Gazstte,--->->->
AUSTIN, TEX, May alp. W. Buer vs.. Will
lam Prescott, from Milan county; opinion by
Gaines, j. Plaintiff sued on account for 1928 .55,
but he concluded the statement of the cause OF
action with the phrase "to plaintiffs damage,
$780," Prayed for judgment for debt, interest
and costs. Appellant insists that the amount
claimed in the petition was $500, and that there
fore the court quo, the district court, had no
Jurisdiction. Held the phrase ito plaintihs
damage, etc. ;" is a mere flourish of the pleader,
and the allegation was superfuons. II IS not
intended to limit and does not limit the recovery
to that sum. The allegations in the petition
and prayer control the sum to be recovered, ana
this sum was within the Jurisdiction OF the
court AnneIlee asks for 10 per cent, damages
for delay, and upon the inspection OF the
record it appears that there are no errors IN u
said damages are granted and the Judgment al
In re-probate of will of Martin Neiman; from
Dallas county; opinion by stayton, C. J. This
is a second appeal of this case, and the only
question now is whether the will of NeimRn was
executed with two subscribing witnesses, as the
law requires in order to admit it toiprobste. The
weight of the evidence is TO the effect that the
signature OF the witness Schulz was not affixed
to the paper offered for probate when first SEEM
nature is not Schuhls. Only one witness,
therefore,. signed said paper during
the lifetime of NiemAn. But it is in
sisted that this fact is proven by in
admissible evidence, in this that some of the
witnesses to the fact were attorneys Tor the
persons who offered the paper for probate and
their evidence should have been excluded. There
was only one witness who properly could be
ca lied an attorney for the proponents, and it
vs.. shown maj he derived his Information as to
the condition of said paper at Nieman' death,
from such sources as to make his evidence IN
admissible. The burden OF proof was on the
parties who offered said paper for probate, and
IL was the duty Of the court to hear a Legitimate
evidence. The finding of the court that Schulz $
name as witness to said paper was signed after
Niemsn's death is correct and the Judgment al
frmed.
p G. Taylor VS.. Travis county; appeal
from Travis county; opinion by Gaines,
J. The county commissioners in laying
ont road over appellants land allowed him
Sl75 damages. Appellant having claimed Sl5, OOO
was not satisfied with the allowance and APP
peaied 20 the district court, where the case was
dismissed for want OF lur1sdietlon rms gus GUS
missal is assigned as error. The statute OF FEB,
ruaTy 5, 1884, in reference to the opening OF
roads and condemnation proceedings thereto,
provides that the owner Of the land, dlssatis-
lied with the assessment of damages by the
commissioners court, may appeal theretrom as
in cases OF the Sppeai from the l99gmentt o.
the question before US. II the words
TO indicate the s'mode'' of appeal. then the
amount OF damages claimed would give luris-
diction. But il these words mean that the ap-
peal should be taken not only in the same man
ner, but also to the same courts Of appeals from
the iustices' courts. then this appeal was right
fully dismissed. lat the lime of said appeal the
County court Of Travis county had not been de-
prired OF its civil iurisdiction.) We think the
fatter construction is the correct one. Many
county courts had no civil Jurisdiction and this
furnishes q good reason why the law above
quoted did not express that the appeal should
be to the county courts. If on the other hand
the amount Of damages claimed was to control
IL cannot be perceived why it was not SO ex-
pressed 1t Is insisted, however, that the law
passed February 6, 1884, requiring the commits
sioners' courts to open certain first class roads,
throws light upon the question here under con-
alteration. The acts passed almost sin1ultsne-
ously with the act of February and provides
thatthe lana owners shall have a right to ap-
peal to the district court, and It is commended
that this provision indicates the construction
given by the legislature to the corresponding
provision in the former statute. We think,
however, that the express mention OF the dis
trict court provided different tribunal from
that named in the other act, for If that had not
been intended the same language would pre-
sumably have been used in both acts. The lat
ter law provided for emergency only and
then ceased TO have effect, certain evils were
20 be corrected by it, the spa-ssly settled coun-
ties were affected by it mostly, and they not be-
ing presumed to have we II trained county judges
capable of dealing with the question presented.
and therefore and IN order 70 protect the inter-
ests Of land owners, the law OF February s, dele
gated appeals under it TO the district court. The
law Of February 8. however, is permanent in its
character, and our conclusion is il provided for
an appeal tribunal different from that under law