Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-15
THE HIGHER COURTS.
-. ., decisions Rendered at the Present
Npv1 AnstIn sitting.
,,,ce of HE Gazette.


Hr Austin Sitting.
.,,ondence of the Gazette.
coHesl Trx.. June I5.-susan F. Thompson
AVSl-T' Tores ct al. from Fannin county; opin-
vs. a Henry. J. This case was before this
iOu o5 .,,o austiu term, 1888, and is reported in
court ~ q, Tb. substance Of the previous APP
6le1 -.,tad now. 1t was then held that
peal i ~. "a in controversy was the homestean OF
hthe iAI g.rrsop at the time OF the execution Of
Ihoortzage upon It by MN ane efa EsIiIa
sou tne e Sancy. the wife of Thomas. was not Q
to WhiS5 not pass title to the one man interest,"
psFs9 ~ ~ MIN at the date OF iacumbrance rms
oWneu y! -oD the former appeal should be held
decision ne case, II was so charged (in
The law - - the previous ruling OF this court
deisls.Tsa1uently there was no error IN tnat P1ic
IDd coIhser1gs. It is evident in this actiqftns
q ne Ines recovered the undlVldedl interest
Nrs. yon'f ,thrr. and not her mothexE held in
which IsI To- order to set the statute ,ef limita-
tie !ahu. NO against Mrs. ThomTkon as an
tor re- father. at any time before her mar
ben .; n yrqs essential to show that yfrnett took
Tisge' J. ~ before the death of the fasher. Upon
possess.o.t The evidence is conflicting. Plaintiffs
tns tI,cfendants we're tenants IN COMMON, ana
G1d a.s1t cannot make cotenant ace4nnt for
one - occupation until after formal de-
the US ~ admitted 10 posse ssion and fAfusal
naDu. ~ demand. Under this rule defeneApts
upon a. ,ot have been charged with rent untll
~. demand. and then not on tine improve
E'G the Jury found defendants TO be pos
nenls. - GOOD faith, and uDon this they were
sessyI.ss ~ COMPENSATION Tor Their l3nprove-
emu though they were tenaFts IN cofnrl9A,
MeIL,5Iisying to own the whoieaFhen they owateq
lOI USag gave them certai ~ as strong al
oue.nA,t Re has who BELIEVES to own the whole
tgaiS fact does not own snyof the estate. Re-
Vs Ts. western Mortgage ana 1nTestmenteon-
ms ue ". 7. Jackson, administrator, from
Ians ',,,,-,-. opinion by Gaines. j. Appellapf
ha,sf To have a valid and matured Ism
Clint snpellees intestate secured by lis1 on
go InreSented the note ana mortgage toAPpel-
!@It, allowance who duly allowed thespmount
zee ~ Int rejected part OF the lien sAilowing
o. M r,ss17aining part. Thereupon appellant
!he its action in the district court and
.a-.Ted Tor Judgment for the DEBT, etc: and for
EI-,o.tsbIishm ent OF a lien on all the land COW
VIC - the mortgage, for foreclosure, etc. The
tlg. r dismissed for want OF jurisdiction, and
tII'%astion of jurisdiction is the only question
o. ms court. Did the refusal OF the adminls-
~ - 40 recognize a lien on part of the land
uailot,go platntih to sue in the district
hts The answer lies IN the proper
eol.. .rcfion of articles 2JlS and POPS of the Re
cons cons ltatutes The former article provides
W.. no executor, etc, shall allow any claim
tslHon.v- AGAINST his testator, etc, unless the
~, is accompanied by affidavit. etc. The lat
70 srfir.e saws that when a claim for money
,i1st an estate has been rejected either IN
stois or In part by the executor or administra-
w. the owner may bring suit to establish it in
lol, ~" -. having jurisdiction. We think the
So, 81, ..rlaim for money excludes the idea that
tg,- lion was embraced by it. A claim for money
ttITG.1rgIlv a claim that debt exists; a claim
5,r a Isn is something more Upon the author
i,r n lf Tex 3g6 il is not necessary to present
Re lien TO the administrator IN order to give
az Iornty court Jurisdiction to enforce it; and
-,fcfs gISl Revised Statutes provides that any
s-r5tor holding a claim secured by mortgage
~ ofber lien, which claim has been allowed,
s,c NAV obtain an order from the county court
11a r1Tr dfzHf erfrfg hoe Fko
,i,ir1 from the lien. From the above, and the
Sort that the administrator is nowhere given
roWer 10 pass on preferences, we conclude that
he administrator was only authorized TO pass
cr me question Of indebtedness, and after he,
had allowed that claim the plaintiff should have,
,ssorted to the county court to enforce the lien
AGAINST the declared mortgagor's interest. At
frmCd.
from Milan county; opinion by Henry. ]. In
Ms action in trespRss to try title, appellants
first assignment of error complains that the
court erred in allowing the judgment of the JUS
lice Of tie peace TO be attacked by a collateral
uroceeding Appellant claimed the land under
srecution issued by Justice of the peace on a
Judgment which did not rCcite service on the de-
iepdant. whose land was sold. Notice to him
aid not appear anywhere, and the original cita-
ton showed that he was not served with that.
The court allowed the defendant to testify that
he was never notified of the tendency of the
gut. also other parol evidence regarding the SER
vice was admitted. By repeated decisions IN the
state it is held: That domestic judgment of q
court OF general jurisdiction upon subject mat
ter within the ordinary scope of its power and
proceedings is entitled to such absolute verify
that IN q collateral action, even where the
record is silent as to notice the presumption,
when not cOntradicted by the record itself, that
the court had Jurisdiction of the person also is
so conclusive that evidence Rliunde will not be
admitted 10 contradict it. In regard to the
Judgment Of 4 justice of the peace the cases of
Williams vs.. Ball, 50 Tex. SOB, and Bumpus vs..
Fisher therein referred to, are authority for
holding that il is not necessary for everything
10 afirmatively appear in the record which is
required to exist to confer upon them jurisdic-
ton with regard TO the person or subject matter,
but they do IOt hold that, like in courts of
general jurisdiction where the record is silent on
The subject. jurisdiction will be conclusively
presumed and no evidence to the contrary will
BE- heard. Even when these courts are recog-
nized as courts OF general jurisdiction, the fact
that the proceedings are oral should Justify a
distinction and we hold that in this ms ;auce the
oral evidence as to service was properly ad-
United, the more 50 as the judgment was a re-
cent one. Notwithstanding, the deed to Mrs.
bchoenmaker was made to her by her former
name. This was properly explained and the
deed correctly admitted Affirmed
A. c. Turner ct al. vs.. E. G. Douglass ct al
IRON Grayson county opinion by Henry j.
Bates Davis, firm. and insolvent, dissolved,
Bates selling out his interest to Davis, who as
sumeu the liabilities. The sale was a secret
one and Davis continued to do business in the
name OF the nTnr and he bought bill OF goods
from Wells & Co., who were ignorant of the
dissolution, rs was known to Bates & Davis
before the bill was paid Davis made an assign
ment OF all his property for the benefit of each
o. his creditors as should consent and accept
ms prOpOrtiOnare share and discharge him
wells Co. sued Bates & Davis and caused the
assigned property to be attached. Suit for
damages was inStitutnd by the assignee against
'he sheriff and resulted in favor of defendants.
number OF cases OF assignments providing
ioT the discharge Of the debtor. made by or for
HIls, but where all the members of the firm did
not loin in the execution OF the instrument have
veeh ned imperative by this court, for the rea-
son that all OF the members did not Join. In
baylor county vs.. Craig, 6g Texas $50, the prin-
ap,e was applied TO one who, though not a
partner N fact, had been held out by himself
:; ma me debtor as one The reason of that case
i applicable 10 the one before US, and under the
I,aaalsPpted evidence the verdict WIS eorrect.
Affirmed. 80