Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-05-07
THE HIGHER COURTS.
Decisions Rendered at the Pres
ent Austin Sitting.
SUPREME COURT CASES,
Supreme Court Findings-Hon. John W.
stayton, Chief Justice; r. Il. Gaines
and John L. Henry, Associate
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 levyine
writ of attachment on the road bed, track,
etc, etc, of appellant company. The petit
ton and prayer for Injunction were based
on the ground that at the time of the levy
the property was in custodia legiS The
attachment it appears was levied after the
appointment of a receiver. but before ne
had qualified the injunction was denied.
Held: l. If there could be a valuation OF
levy made on property while in custody
of the law by a subsequent dismissal OF the
suit. through which the custody was in
yoked and granted, proposition which we
do not wish to be understood TO assert
this would not, under the facts, sustain ap-
pellee's claim, for before the suit in which
the receiver was originally appointed was
dismissed the caurt had assumed the Gus
tody of the property, appointed another re-
ceiver and had caused the property TO be
sold and had confirmed that sale.
The rights of purchasers at that
sale had attached, and no lien could be made
to attach TO the property after their pur-
chase which did not rest upon it.at the time
the suit was instituted under which they
bought 3 The authorities 90 far towards
holding that property, over which recelV-
ership is sought, is in custody of the law
from the time bill, even though defective,
is filed presenting a controversy over which
the court has Jurisdiction and asking the
court to assume custody Of the property.
There is a manifest propriety, II not neces-
sity, for holding that the court when hrSt
acquires Jurisdiction over controversy,
should maintain it undisturbed by the in
reference of any other court of coordinate
Jurisdiction, and there is much force IN the
proposition that its jurisdiction over the
hing to which the controversy relates
Should not be interfered with in any case
in which the custody of the thing is neceS-
sary to the full adjustment of the rights OF
the parties to the controversy. 8. We un-
derStand the courts to hold, almost without
dissent, that after the appointment OF re-
ceiver, the property to which the receiver
ship relates is to be deemed in the custody
Of the law, ard this seems to us the correct
rule r Sanford CHI, sos; 25 n. Y, 496; is
\. c.. 400: Sanford, 6l0; 81 Mo, 3l5. The
Judgment OF the court below is reversed
end here rendered enjoining the sale of the
property as prayed for in the court below
by appellant. So ordered. Stayton. G. j.
Abner Taylor VS.. d. c. Dunn ct al.
from Travis Appellant had q contract
with the state to build the present state
capital, and asked and obtained permission
TO construct railway on and over certain
streets in the city of Austin connecting
with different railways, same being for the
,Ufrpose of conveying heavy material for
She construction of the capital. Appellant
entered into bond with the city conditioned
that he would keep the street crossings in
repair and that after the capital was COM
pleted the track, together with the rubbish,
etc, should be removed. Appellant after
the track was constructed and the capital
begun made a sub-contract with Gus
Wilke, by which Wilke was to furnish
material and complete the capital building,
it being stipulated that Wilke was to have
full use of the said railroad, cars, etc.
7WillSe also obtained permission of the city
TO Law additional track for the same pur-
pose In the contract between appellant
and Wilke, the latter bound himself to
hold the former free from all damage that
might occur by reason Of the operation of
trains on said road, and to comply WITH the
ordinances of the city relative thereto.
Mrs Dunn, the wife of appellee, was
injured by the negligence of
the employees of Willze while
operating a train on said road.
Dunn brought this suit and recovered.
There is no claim that the injury was
caused from the negligent construction of
the road. Held: l. Under the facts to fix
liability on Taylor it must be shown either
that he placed the railway in the street
without authority, and that from its nature
and the use to which it was applied it was
a nuisance and he therefore liable although
the injury occurred while it was operated
by Wilke, or that he is liable under con-
tract growing out of the ordinance under
which he constructed the road, or out of
the bond which he executed. 3 Appellant
had not the right to use the particular
streets or any others for the purpose for
which he did use them without the consent
of the municipal authorities, and the latter
had the power to legally permit appellant
to use them for the contemplated purpose
SO long as this was necessary. 3. If Taylor
did not have the right to make the transfer
to Wilke under the ordinance then there
can be no doubt but that the subsequent
ordinance passed at request of Wilke as
contractor, would confer upon him the
right to use the railway in the contemplated
work. and thus operate as ratification of
the contract between appellant and Wilke.
4. We think that part of the ordinance
should be responsible to "all per-
sons for any damage or injury
that may result to him or them
or their property from the construction,
use and maintaining said railroad" was
evidently inserted for the purpose of avoid
ing all controversy as to the primary liabil-
itv OF appellant for such injuries as might
result lHt anu
ance of the railroad, and not for the pur-
pose of comforting on individuals causes of
action against appellant which they would
not otherwise have. We think the ordin-
ance was only intended to secure indemnity
to the city of Austin, and that it cannot con-
fer any benefit as to individuals and third
parties.-(79 Iowa, 419; New York, As;
SO Missouri, 357. 5. With the highest respect
for the opinions of the United States
supreme court, always distinguished for
the ability and learning of its judges, we
cannot agree to a contrary doctrine laid
down in is Wall, 566, but must dissent and
hold that it was contract for the indemni-
tication of the city, and not intended by the
parties to it as a contract for the benefit of
individuals on which a person injured by
the negligence OF a contractor or his en-
ployes might maintain an action Resolved
and rendered for the appellant.
STATION, c. ].
n. Kempner VS.. Hattie Rosenthal; from
Cooke. l. Goldstein & Melosky were in
solvent and Indebted to both appellee and
appellant. The title to the land in contro-
versy was in Melosly of said firm, who
eaFe his partner, Goldstein, power of at
80 coll nnp-raSi-