Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-25
SUPREME COURT.
DECISIONS RENDERED AT THE
AUSTIN SITTING.
Hon. John W. Stayton, Chief Justice; r. r.
Gaines and John L. Henry, Associate
Justices; G. 8. Morse, Clerk.

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State of Texas vs.. Farmers Loan and
Trust Company; from Smith. This was a
suit instituted by appellees against the In
ternational aud Great Northern railway to
foreclose second mortgage bonds, amount
ing to 81, 000, 900. The state, through her
encouragement, interviewed in the suit,
alleging that the bonds sought to be FORE
closed were 'swatered," fraudulent, illegal
and void, and thereby unreasonable freight
and passenger rates will be imposed upon
the public, and that the corporation and
railway created at the expense Of the state
for the public good, will be used as an in
strument of oppression and injury to COM
merce and the people who are forced from
necessity to patronize the road. The state
further alleged that the owners of the road
and receivers thereof had failed and re-
fused to interpose proper defenses to said
fictitious and fraudulent bonds. Appellee
dismissed their suit over the protests of
the state, the latter claiming that it had al
legged and prayed for affirmative relief, and
that appellees could not dismiss over the
protests of the state. The court below al
lowed dismissal. The state appealed, and
the question presented here for decision is,
did the state ask for such affirmative re-
lief (belng an intervenor) as would entltle
1t TO q standing in court, Notwithstanding
The allegations of the states petition do
not show an Independent cause of action,
and this being true the state cannot as an
intervenor in this case maintain its stand
ing in court after a dismissal of the
case by appellees. It is not shown
the public had such au interest in the non
payment of the bonds through foreclosure
or otherwise as would entitle the state TO
the relief asked. While there is but one
question involved Chief Justice Stayton
discusses same in quite lengthy and Ella
borate opinion, holding that the dismissal
was properly allowed by the court below.
Affirmed. Stayton, c. J.
State of Texas vs. Kennedy & 81 oan;
from Smith l. This is n companion case
to that of the State VS.. Farmers Loan and
trust company above instituted for the
same purpose, with the same intervention
by the state, and for reasons given in said
case this Judgment will not be disturbed.
Affirmed. Stayton, c. j.
Missouri Pacific railway vs.. Dan P.
Smith; from BeXar. On rehearing. l. The
motion to file 4 motion for rehearing after
the time has expired is oyerruled. ?. Leave
was given to make Johnson party, and
this seems not to have been done, and the
judgment which makes no disposition of the
case as TO him is final. The court evidently
treated johnson as a dormant partner of
Smith, and therefore rendered Judgment in
favor of Smith alone, which is a bar to any
further action by johnson. Overruled.
Stayton, c. J.
f. B. Smith VS.. ]. F. Perkins ct al On
rehearing. /. On former day of the term
this cause was reversed and rendered by
the commission of appeals. That Judgment
will now be set aside, and the cause will be
reversed and remanded for new trial.
Stayton, G. j.
rtNl.~ ~ - ILLS
Colorado and Santa Fe railway; from Cal
weston. This controversy between appel
liant and appellee is to determine the right
of the former TO lay tracks and sidings con-
Meeting its business with railroads on
avenue y in the city of Galveston. l. The
court holds that the act of the legislature
granting appellant its charter did not con-
fer upon it the right to construct and MAIN
tain sidetracks and switches south of its
main line. 2. Under the ordinary rules APP
piled in the construction of laws and con-
tracts the specific mention of certain turn
outs and switches and connections would
be interpreted to exclude the right to con-
struct others. 2 Par on Cont, SIC; Broom
on Legal Maxims, 626. 8. Public grants
are to be taken more strongly against the
grantee and in favor of the public. If there
be doubt as to the extent of the grant the
doubt is resolved in favor of the public
T13 n. J., Eq. Is; 9 Par. Cont, 506-1.
4.
authority the wharf company can not be
held TO have acquired a vested right to
maintain them. and without such right it
has no Just cause to complain because it is
required to remove them. Appellant is
allowed thirty days from this date to re-
move tracks, etc, from avenue A. Affirmed.
Henry, j.
J. w. Smith vs. ]. a. Stevens; from
Johnson. On rehearing. l. Appellee owed
appellant on two notes. He paid $500 on
same, and appellee gave him receipt stat
ing that he had received $500 ''to be paid
on notes. and this seems to have been the
understanding Held: The charge of the
court was erroneous in treating the whole
of the $500 as a payment on the note in
controversy. The payment should have
applied in proportion that the smaller note
bears 10 the larger one. Reversed and re-
manded. Henry, j.
Ernst Scharff vs. Missouri Pacific Rail-
way; from Conal. l. Appellant brought
suit in Travis county against appellee and
one Barbeck. The court sustained a gen.
eral demurrer as to appellant, overruled it
as to Barbeck and gave appellant leave to
amend. continuing the cause until the next
term. When the case was called next
term appellant without amending appeared
and dismissed his suit. On these grounds
the court in this case charged the jury that
the cause was res adiudicata, and to find
for defendant (appellee). Held: This
charge was erroneous. The leave to amend
takes from the Judgment that qnality of
finality which is necessary to make it an
estoppel, and thus 'sets the matter at
large" Appellant having voluntarily dis |
missed his suit, under the circumstances
the Judgment sustaining the demurrer
ought not to be held conclusive upon him.
Reversed and remanded. Gaines, j.
Tompkins Machinery Company vs.. Peter |
D. Sheriff.; from Denton. Motion appellee |
file briefs. l. A submission may be set |
aside and appellee allowed to file briefs,
appellee paving all costs of the motion. So |
ordered and motion granted. Per curtain. |
B. F. Nicholson VS.. w. Showalter; from |
Webb. Motion for precedence. l. The |
question being as to whether OF not Judge |
is disqualified TO act in receivership mat |
ter, the case is not entitled to precedence. |
An agreed case'' under the statute |
could be made, in which event the cause |
would be advanced. Motion overruled. |
Per curtain.
Galveston, Harrisburg and San Antonio
Railway VS.. ". +. Thompson; from Medina
Motion to file transcript. J. A transcript |
may be filed by agreement of parties at any
time after its regular assignment. |
Granted Per curiam.