The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1891-05-07
fHE HIGH COURTS IN SESSION AND
WHAT THEY DID YESTERDAY.
Grist From the Minor Mills of Aus
tin as Caught by the Statesmans
Court Force Yesterday.
SUPREME COURT.

Hon. Jno. w. Stayton, chief justice /;
FIR. R. Gaines and Jno. L. Henry, as
sociate judges; Chas. S. Morse, clerk.
Texas Trunk railway vs.. w. H.
Lewis ct al, from Dallas. This suit
was brought by appellant to restrain
Appellee Lewis as sheriff of Dallas
county, from levying writ of at.
tachment on the roadbed, track, etc.,
etc, of appellant company. The pc
Elton and prayer for injunction were
based on the ground that at the time
OF the levy the property was in GUS
todia legis. The attachment, it APP
pears, was levied after the appoint
ment of receiver, but before he had
qualifed the Injunction was denied.
7 Held: l.. If there could be valida-
zion OF a levy made on property while
Y ia custody of the law by subsequent
dismissal of the suit through which
that custody was invoked and granted,
proposition which we do no not
wish to be understood to assert,
This would not, under the facts,
sustain appellee's claim, for before the
suit in which the receiver was origin
ally appointed, was dismissed, the
court had assumed the custody of the
property, appointed another receiver,
and had caused the property to be sold
and had confirmed that sale. The
hight OF purchasers at that sale had
attached, and no lien could be made
to attach to the property after their
purchase, which did not rest upon it
at the time the suit was instituted
under which they brought. 2. The
authorities go far towards holding that
property over which a receivership is
sought, is in custody of the Jaw, from
the time a bill, even though defec-
live, is filed, presenting q controversy
over which the court has jurisdiction,
and asking the court to assume custody
Of the property, there is manifest
propriety, if not necessity, for
holding that the court which
4 first acquires jurisdiction over con-
sttroversy, should maintain it undis-
Slurbed by the interference of any
other court of coordinate Jurisdiction,
and there is much force In the propos-
ition that its jurisdiction over the
bling to which the controversy relates
i should not be interfered with in any
Base in which the custody of the thing
Is necessary to the full adjustment oil
the rights of the parties to the con-
troversy. 3. We understand the courts
n 10 hold, almost without dissent, that
after the appointment of receiver,
the property to which the receivership
relates, is to be deemed in the custody
Of the law, and this seems to us the
correct rule. g Sandford Oh. sos; %
N. Y. 1896; 6S N. c., 400; 5 Sandford,
BIO; 81 Mo, 3l5.) The judgment OF
The court below is reversed and here
rendered enjoining the sale of the
property as prayed for in the court be-
low by appellant. So ordered. Stay
bon, G. J.
Abner Taylor vs.. D. G. Dunn ct al,
from Travis. Appellant had con-
tract with the state to build the pres
ent state capitol, and asked and ob-
tained pei mission to construct rail-
way on and over certain streets in the
(. CITY of Austin, connected with differ
ent railways, same being for the pur
pose of conveying heavy material for
the construction of the capitol. APP
( pellant entered into bond with the city
conditioned that he would keep the
street cross sings in repair, and that
after the capitol was completed the
track, together with rubbish, etc,
should be removed. Appellant, after
n the track was constructed and the cap
ital begun, made sub-contract with
Gus Wilke, by which Wilke was to
s furnish material and complete the
y, capitol building, it being stipulated
that Wilke was to have full use of the
said railroad, cars, etc. Wilke also
obtained permission of the city to lay
additional track for the same purpose.
In the contract between appellant and
Wi Ike, the latter bound himself to hold
the former free from all damage that
might occur by reason of the opera
ton of trains on said road, and to COM
ply with the ordinances of the city re-
lative thereto. Mrs. Dunn the wife
OF appellee was injured by the negli'
gence of the employees of Wilke while
operating train on said road, Dunn
brought this suit and recovered
There is no claim that the injury was
caused from the negligent construc-
ton of the road. Held: l. Under
y the facts, to fix liability on Taylor il
must be shown either that he placed
the railway in the street without
authority and that from it's nature
and the use to which it was applied
it was a nuisance, and he therefore
liable although the injury occurred