Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-08-11
JUDICIARY AMENDMENT.
Evils which VIII Result from the AdOp-
ton of the Proposed Judi
ciary Amendment.
AUSTIN, TEN. Aug. 4, 1891.

| AUSTIN. Ten. Aug. t. 1891
Editor Gazette.
1t is the purpose Of the writer to indicate
briefly some of the SeriCls evils not merely
possible, but altogether probable, if the
proposed Judiciary amendment, to be voted
on Tuesday next, shall become a part OF the
organic law of our state.
Omitting all legal phrases and technical
expressions it will be sufficient 10 say that
section of that amendment provides for
an appeal on questions of law to the SUI
preme court from the courts of civil APP
peals, tribunal established by the amend
| meut in three classes of cases, to-wit: l.
! Where the Judges of any court of civil ap-
pealS may disagree. :. Where the several
courts of civil appeals may hold differently
| On the same question of law. 3. Where Il
| atule of the state is held void
Section 80, article l6, of the constitution
! now provides that the homestead shall be
and is hereby protected from forced sale for
| the payment of debt Suppose a statute
of the state should permit or authorize the
| forced sale of the homestead for debt. and in
! q suit between the wife to recover the home
stead. and the purchaser, at the execution
| sale the unCOnstitutiOndlityo of this statute
| is urged by the wifeS counsel, and the
| court Of civil appeals holds it 10 be cOnSti-
| tutional aud valid. We then have d well
| defined case where the wife is deprived of
| her homestead under statute manifeStly
! NDlt, DIJ DttduSS II IL IOU l4clu u De NUlu
| she has no right of appeal, as that right is
| only given where ''the statute of the state
| is held TO be void and not where. as in
! the above case. it is decided to be valid.
| Pursuing this line of thought ii may be
well to vote another instance of a grave
| wrong possible Under this clause.
! 1t is well known that under our cOnstitu-
| ton no mortgage or other conveyance OF the
homestead subject to a defeasance IS valid
| a statute OF the state, however, may au-
thOriZe such mortgage or conditional con-
vcyance of the homestead. The right to
the enjoyment and possession of the home
may depend on the construction of this law.
If it is held to be valid, the result is that
the wife and those for whom the protection
| IS intended by the benefcent provision of
the constitution fOrbidding the mortgage of
the home. are deprived Of this protection
and lose their home because they have no
right of appeal.
IL will be observed that in the cases in
stanced should the court hold the statutes
referred 10 be void, the purchaser of the
homestead at the forced sale, and the
claimant thereof under the mortgage, each
possess the right of appeal denied to those
so vitally interested in the homestead pro-
lection.
So, too, with respect to the ''alien land
law, law, the constitutionality and policy
Of which forms the front thought in the
public mind OF our state to-day.
4 party to litigation sincerely believes
that this statute, which injuriously affects
his right and title to realty. is unconstitu-
tional and absolutely void. 1t is held, how
ever, by the court of civil appeals to be
valid and in entire harmony with our fun
damental law. He is absolutely remedi-
less, because. the statute not having been
held TO be void the amendment gives
him no right to appeal. Further discussion
OF this clause is entirely unnecessary, as
bn lep
which similar wrongs and injustice will
result.
Recurring to the second clause allowing
an appeal where the several courts of civil
appeals may hold differently on the same
question of law" we are confronted with
results equally grave and evils unquestion-
ably as manifest. Section IS of article 16
of the constitution of our state exempts
from punishment current wages for per-
soual service A statute. we will sup
pose, has been passed authorizing, or per-
hitting, the seizure under garnishment of
the laborer's wages. This statute, the va
lidity of which the labOrer'S counsel ques-
tions, is held TO be valid by each OF the |
courts of civil appeals. The party whose |
wages are thus seized by writ of garniSh- |
ment is denied an appeal. although the de- |
Cision is manifestly erroneous, because it is |
not a case where the several courts of |
civil appeals hold differently on the same |
questions of law
Again, under article 1894 of the Revised |
Civil Statutes, ten years adverse possession |
of land with the other statutory require |
ments gives title 10 100 acres thereof: or # |
larger quantity be held under Enclosure, |
the title will extend TO whatever may be |
thus iuclosed But. if one of the courts of |
civil appeals decides that the party is enti- |
tied 10 only fifty acres, although he may |
establish title to 100 or 800 acres, and the ]
same question is not raised and decided diff
ferently by the other court of civil appeals, |!
he has no right of appeal, and if the |
remaining courts of civil appeals should
hold the same doctrine, he never
has the right of appeal, because they |
must hold differently to entitle him to
such appeal. So his right of appeal depends
on whether the same question happens TO |
be raised in the other courts of civil ap-
peals, and whether that question is decided
differently. If either contingency fails 10 |
occur he is without remedy.
The cases referred to relate to in6ividu-
ais generally and where the injustice is
felt by the citizen. Let US briefly inquire
into the operation of this clause on corpor-
atoms. which constitute Z numerous and |
important class Of itigantS in our tribu-
mails.
Ii is well settled in this state that where
damages are sought 10 be recovered for the
death Of a person caused by the negligence
u i railroad company prior to March
1857. gross negligence must be shown to
support recovery. (SinGe that time or
The courts of civil appeals holds, however.
that recovery may be had on proof of or
binary negligence. This, it is well recoE-
lized, Is directly against the unbrol5en cur