The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-06-05
THE COURTS.
PROCEEDINGS IN THE TEMPLES OF
JUSTICE HERE IN
AUSTIN.
Important Decisions in the High Courts
and Minor Legal Matters in the Dis
trict and other Courts.
THE COURTS.
SUPREME COURT.


The supreme court decided the fol-
lowing cases on May %, 1890.
]. A. CREAeER VS.. w. S. DOUGLAS,
from Wilbarger county. Opinion
by Henry, j.
Suit by Douglas for undivided inter
est in 507 acres of land, on the allega-
ton that Creager gave certificate to
locate which belonged to Williams
upon a contract that Creager and
Douglas should divide the compensa-
ton received. Plaintiff recovered.
Plaintiff having taken the deposition
of Williams, withdrew them without
authority for the purpose of having
the notary correct his certificate, after
the deposition was returned to the
clerk without proper endorsements on
the second envelope. The court sup
pressed the dispositions, but gave per-
mission to withdraw them for the
purpose of having them properly re-
turned. Held: In view of the strict
ness of our statutory regulations on
the subject the first withdrawal was
such an irregularity as to be fatal to
their use afterwards. The petition
setting up an express contract, it was
error to admit evidence of custom
that the locator divides fee with the
party procuring the certificate. Some
other evidence was objected to rs be-
ing inadmissible, but as the case was
tried without jury aud the court did
not consider the testimony so OBJ
jected to the error, If error it was,
was harmless. The evidence was in
sufficient, however, to warrant re-
covery by plaintiff and the judgment
is reversed and cause dismissed.
ELLIOTT AND Roe V. S. A. j. AND M. F.
LONG, from Nolan county. Opinion
by Henry, ].
Suit with writ of Sc
questration for fitty-fve head
of cattle by appellants against APP
pellees, the former claiming title as
vendees under a deed of trust exc
cuted by M. G.. and L. R. Taylor, the
former owners of the cattle. Appellees
claimed as purchasers from said Tay-
lors under bill of sale conveying all
cattle OF said brand excepting sixty
five secured to Elliott & Roe by deed
of trust. After the last sale appellants
were authorized to put their own iden-
tifying 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 five head were so segregated and
identified as to distinguish them
from the other cattle of the same
brand. Held: This charge was err
roneous. The deed of trust not con-
veying any specified cattle was not a
nullity, but as between the parties to
it the contract could be subsequently
executed by designation of the sixty
five head. Defendants did not buy
said sixty-five head, they were ex-
pressly included and before the cattle
sold to them could be treated as be.
longing to them, those of plaintiff had
to be identified first. This was done
by putting plaintiffs distinguishing
brand on them. They then became
appellants cattle ana appellants were
entitled to judgment.
REVERSED AND REMANDED.
J. G. GAAL,ys. J. G. TOWNSEND EFT AL.
from Ell Paso county. Opinion by
Gaines, J.
Appellant was elected county com.
missioner of Ell Paso county in 1888
and while holding this office
he was elected and accepted the Office
of Mayor of Ysleta. Thereupon the
county judge treated the Office of com
missioner as vacant and appointed
Schultz, one of the appellees, to fill the
vacancy. This action was brough,
against the county judge and Schultz
toprocure writ of mandamus to com
pei the former to permit appellant tc
perform his duties as commissioner
The suit was dismissed for want o.
proper parties, AMI this action was
correct. The other commissioner
should have been made parties under
the general rule that "when the per
formance of duty is sought to bt
| OO.upCliCu ny IhO VIII III llldUudIll us
all persons charged with the perfor
nance OF that duty must be made par
ties defendent." The judgment of I'll {
court could not be carried into effec,
against those parties who were MOI
defendants in the suit for mandamus
They could not be held in contempt
for refusing to admit plaintiff as
member of their body. al Conn
245.)
In view of another trial, in which
the question would arise whether OF
not by the acceptance of the Office O
mayor, appellant ipse facto vacated
the Office of commissioner, we deem il
proper to give our opinion on the
proper construction of sec. 40 art. II
of the constitution upon which thil
question hinge. (This section reads
No person shall hold or exercise at tn,
same time more than one civil offic,
of emolument, except that o