Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-11-15
SUPREME COURT.
DECISIONS RENDERED AT THE
TYLER SITTING.
Hon. John W. Stayton. Chief Justice-RS
r. Gaines and John L. Henry, Associate
Justlces-S. d. Reeves, Clerk.

OWutu idlO uCIpSS WiiSu dpPSiAiuO
company constructed its track. After the
road was built and before this suit was
brought he sold to appellant Measles. he
instituted suit to recover damages, after
having previously sold the land to Measles,
and alleging that in his conveyance TO
Measles he reserved the right to sue for
damages to the land. He made Measles
party defendant. The latter reconvened
and asked that damages to the land be
awarded him instead of appellee. Verdict
for appellee against both defendants. Held !;
Appellee was entitled to recover for dam
ages resulting from the construction of the
road, and damages to the remainder OF the
tract, but Appellant Measles would be en-
titled to recover any damages occurring by
reason of depreciation in value after his
purchase of the land. Reversed and re-
manded. Gaines, j.
G. w. Morris vs. J. c. Gains; from Rock
wall. l. Suit by appellee to foreclose a
vendors lien. Appellee pleaded in reconven-
ton that appellant had by parol contract
purchased tract of land from him by
promising to pay off an outstanding vendors
lien note against the land, and to pay bal.
ance to appellee. It was shown that appel
liant had paid off part of the vendors lien
note last mentioned. Held: The court erred
in charging in effect that If the jury found
that appellee had sold appellant the lot by
promised to pay for same in consideration
of such sale, being the vendor, appellee
must show a promise in writing to pay. I'M
der his pleadings, IS Tex, IS. Appellee
cannot recover on his pleadings, but may
amend and recover on the facts established
by him. The part performance to take a
case out of the operation of the statute of
frauds must be by the party who seeks to
enforce the contract. Reversed and re-
manded. Gaines, j.
Texas and Pacific Railway VS.. E. E. Over
all from Marion. l. Appellee was pas
senger on appellants train. While the
train was stopped ct station, appellee was
standing on the platform outside the car
door and had his hands behind him, his
fingers being in such a position that when
some one suddenly closed the door, they
were bruised and injured. Appellee testi-
fed that the brakeman shut the door, and
that he saw appellee at the time. Thy
brakeman testified that woman passenger
shut the door in attempting to enter tbs.
water-closet Held, the proof shows con-
tributory negligence, and even if this were
not so the evidence does not support the
verdict. Reversed and remanded. Gaines, j.
E. P Anderson VS.. Oldham & Ward;
from Ellis. Suit by appellant to restrain
by Injunction a sale of certain cattle levied
true rule in such cases as this is that to en-
title party to relief in equity he must
show, first, that his failure to make full an
swer in the suit in which the Judgment was
obtained, was not attributable to his own
omission, neglect, or default, and, second,
that he had good defense to the entire
cause of action, or to such part of it as he
proposes by his petition to litigate. 1t is
not enough to show that he was not guilty
of neglect in permitting the Judgment to go
by default. but he must also clearly show
that it is inequitable and unjust to permit
the Judgment to be enforced. ll9 Ala, pa
The petition does not show that appellant
is entitled to the relief sought. AfirmedS
Stayton, G. j.
Mayer, Kahn g. Freiberg vs.. A. C.
Walker; from Bowie l. The court below,
on motion by appellants for q continuance
based ON the ground of surprise at the
allegations of third amended petition, in,
dicating his intention that the motion was
well taken, the court did not err in allowing
appellee to withdraw his third amended
petition and announce ready on his second
amended petition. 2. While the evidence
is conflicting, it sustains the Judgment. No
error in the charge. Stayton, c. j.
Texas and Pacific Railway vs.. Mrs. R. NJ.
Snyder; from Tarrant. /. Proper diligence
setting of a jury and non-jury docket in or
der to see when his case come up for trial
before summoning his witnesses. Witnesses
should be promptly summoned. 2. The evil
dence supports the finding that the railway
was negligently constructed, whereby ap-
pellee's crops were injured. Affirmed.
Stayton, c. j.
Bonner and Eddy, Receivers, vs.. Seymour
Mayfield; from Anderson. /. Receivers of
railways are liable in their official capacity
for damages incurred Ly reason of defects
in the road existing at the time they took
charge, regardless Of whether they had ac-
tual or constructive notice of such defect
re Tex, is. 2. A witness of twenty years
experience in building railroads was prop
erly permitted to testify that the culvert
was effectively constructed. No error.
Affirmed. Stayton, G.
w. w. Thompson VS.. Oscar Anderson !;
from Delta On motion to dismiss writ Of
error. l. The citation does not show when
the petition for writ of error was filed, nor
give proper description of the judgment,
but the motion to dismiss cannot be further
sustained than to strike the cause from the
docket. This, however, will not defeat the
right to have proper citation issued subse-
quently. 2. Where an appeal is perfected
and is not prosecuted, the appellee failing
case can be brought to this court by writ Of
error at any time within two years. Case
stricken from docket and motion to dismiss
overruled. Stayton, c. ].
Sampson Clitus VS.. J. NJ. Landlord; from
Navarro. Motion to dismiss writ of error.
l. Judgment was rendered below Deem
Der s, 1883. Petition for writ of error was
filed and citation in error was issued De-
cember l, 1890. Held: Proper diligence is
not shown. Writ of error dismissed. Stay
NJ. B. Lloyd vs.. City of Fort Worth; from
Tarrant Suit by appellee to recover Of
appellants as bondsmen, for defalcarion of
one Blackman as city assessor and collector
of Fort Worth. Blackman entered on his
duties April %, 1885, and the city council
having cancelled his bond on June 3, 1855,
on the same day he executed new bond
with different sureties. Appellants were
sureties on the first bond. l. The excep-
erly strickenI out. The city council was
without authority to release the obligors on
an official bond, and we further think that
the expression cancelled as used by the
council must be held to apply to future and
not past responsibility. The sureties must
be charged with knowledge of the want Of
power Of the city council to release them on
the bond. 2 The court erred in refusing the
following charge: THE fury are instructed
that ID no event can they find a verdict
against defendants for an amount larger
than the smallest amount that the evidence
shows Blackman to have been indebted
to plaintiff at any time subsequent
to June 8, 1885, and prior to his resignation,
with interest thereon from January l,
1856" The evidence shows that at one
time he was in default for a smaller