The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1891-04-23
JUDICIAL.
THE HIGH COURTS IN SESSION AND
WHAT THEY DID YESTERDAY.
Grist From the Minor Mills of Aus
tin as Caught by the Statesman's
Court Force Yesterday.
SUPREME COURT.

Hon. John W. Stayton, chief justice; r.
R. Gaines and John l.. Henry, associate
judges; Chas. S. Morse, clerk.
| T. H. Parker ct al. VS.. Brown Il Ricketts,
from Grayson. 1. The land in controversy
is university land situated in Grayson
county which under the act of Aug. 30,
1851 was contracted to j. H. Evans, who
never complied with his obligation to pay
for it. Evans also failed to comply with
the act of March A, 1875, passed fl the re-.
lief of such persons as had failed to com
ply with such contracts under the former
law. In May, 1875, Parker attempted to
purchase the same land, and executed such
| an obligation as would have entitled him to
the land, had he been an occupant at the
time and made the required payments. The
obligation required of him to pay to the
state $777S3 by March 1876, and annually
thereafter one fortieth of The balance of
purchase money with interest, bat he only
paid $25 and was never an occupant of the
land. To recover the land he brought this
action against appellees who bought
April 1, 1887, and who have complied with
all the requirements of the law. They and
those under whom they claim have been
in actual possession of the land for more
than ten years before this suit was brought.
The state interviewed, alleging a failure of
Parker to comply with his contract and
asking revision of same, and denied the
right of appellees to the land. Held. APP
pellees held as against Parker by limita-
ton of ten years, although Limitation would
not run against the state. Parker failed to
comply with the terms of his purchase and
therefore forfeited all his rights to the
premises. Appel!.es purchased under the
| act of April, 1887, and having complied
with the terms of the contract judgment in
heir favor was proper. Affirmed. Sayton,
CO..
Texas Central railway VS.. G. G. Burnett,
from Shackleford. Suit by appellee for
personal injuries sustained by his wife. /
Physicians were properly allowed to testify
and give their opinions as to wether the in
juries 10 the wife of appellee were such as
would likely result from such con-
cussion as was shown, the accident
trains. g. The court instructed the iury
that "when it is shown by the proof that
an injury was received by reason of and as
the direct result of an unusual occurrence,
then the law presumes the occurrence so
causing the injury to have happened by
reason of negligence, unless it further APP
pears by the proof that such unusual oc-
currence was not the result of neglil ICE,
but on the contrary was caused by some
n iron fl1q Of a nr III hn roll
of the greatest care and prudence could not
have prevented Held: Erroneous The
charge is upon the weight of evidence. be-
cause it informs the jury that the law pre-
sumes negligence from the happening of an
unusual occurrence producing the injury.
1t was equivalent to charging that plaintiff
could recover if collisions between trains
were unusual occurrences, unless it was
shown the accident could not have been
averted by the greatest care. Reversed and
remanded. Stayton, Q. j.
Sidney Thomas VS.. Junction City Irriga-
ton company, from Kimble. SUIT by APP
pellant to restrain appellee from erecting
a dam across Llano river to con-
meet with his farm on the south side.
Before this suit was Instituted appellee had
sued out an Injunction and appellant an
swered and asked for damages against ap.
pellee because Of the keeping and main
tanning the dam by the latter. Injunction |
was granted and damages refused Suisse |
quently the dam was partly washed away |
and this suit was brought to restrain APP |
pellees from repairing same. Held: The |
former action by appellee for an injunction
restr aiming appellant from interfering with
the dam, ana the answer of appellant in |
said suit asking damages is conclusive of
appellants claim for an injunction, on any
ground now claimed In the former suit APP
pellant was enioined from interfering with
the dam AMI his prayer for damages was
refused This judgment preCludes the APP
pellant f.om claiming that the only right
appellee then had was a mere license re-
vokable at the will of appellant. Under
the allegations of his petition az pellant is
entitled to no relief. Affirmed. Stayton,
G. j.
q Cotter, Truelove d Co. VS.. o. +. Parks ct
al, from Johnson l. In his original pc.
tition appellee Parks alleged that Cotter
Truelove & Co., had on deposit large
sum of money belonging to appellee and
that through the Joint wrong of
Cotter, Truelove q Co., and the former
money was misappropriated by them and
lost to appellee. The amendment set up
that instead ofthe whole amount having
been misappropriated by all of the defend
ants, s2239l of said sum had in fact never
been paid out as claimed by Cotter, True
love d Co., and that the latter were sepa
ltely liable for said sum. Held: the amend
ment did not set up a new cause of action,
and consequently the cause of action was
not barred. 2. The amendment set up a
separate demand of $223.9l from Cotler,
Cruelove u Co., out OF the oris lnal de-
mand, and continuing to assert against APP.
pellants Cotter ct al, the balance of the
original demond, the court did not err in
holding that it had jurisdiction of the sepa-
rate demand for $22S91. 8. Appellants can
not complain of separate verdicts as to Cot