Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-05-18
COURT OF APPEALS.
DECISIONS RENDERED AT THE
AUSTIN SITTING.
The Findings-HOn. John +. White. p. j..
Judges j. VI. Hurt and W. l.. Da-
wilson, Associate Judges, p.
Walton. Clerk. &.

| Fort Worth and Denver City Railway vs..
| Wiley Ray; from Montague. l. The EVIL
| dence shows beyond dispute that the fire
from passing engines set fire to and burned
| off the grass. The fire was set in less than
one hundred and fifty feet from the track.
| >. One witness testified that the appl-
| ances for preventing the escape of fire was
| of the latest Improvement and that this
| part of the machinery was in good repair
| two or three days prior TO the burning OF
| the grass, but he afterwards qualified this
| statement by saying that the master
| mechanic had told him SO. The "appli-
ances" were either not good or in bad re-
! pair or the fire would not have been of suf-
| tcient magnitude TO have been carried l10
| feet. Facts show negligence. Nothing IN
| question as to measure of damages. a
Tex. $50 Affirmed. Per curiam.
| Charles Dillingham;, receiver. vs.. s. C.
| Jackson; from Grayson. l. The evidence
| in this case does not show cOntributory neg
| ligence on part of appellee IG6 Tex, 3i5l
| .. The charge was favorable To appellant in
| instructing the jury 10 lind for 1t unless
| its employees made the noise for the purpose
\ of frightening appellCe'S team. This was
\ favorable for appellant, but rather con-
tracted to appellee I52 Tex, 252: 66 Tex,
| 3i5l. 3. Where the rights of the railway
and the general public clash as to right of
| transit or passage over streets of cities
and towns, the right of the public is SUI
] perior to the raslroad 1875 Tex, 3t5 AT
! tirmed. Per curtain.
A A. Spangler vs.. Thomas Holmden;
| from Clay. Motion to strike out statement
of facts. l. Appellcnt did not present the
statement of facts TO appellee Tor approval
| until the last day for making out same.
about q O'Clock in the evening. Appellee
refused to agree TO same, because 1t was IN
correct, and asked the court 10
let him file corrected statement the
next day. The court approved
the statement about o'clock
that evening and appellant took the state
meut and left it with the clerk at his house,
he having left his Office. The county Judge
makes affidavit that the statement does
not contain all the facts. Held: Motion
sustained and statement of facts stricken
out. Per curian.
Fort Worth and Rio Grande Railway vs..
D. II. Hurd; from Erath. l. Bills of eX-
ception filed after adjournment cannot be
considered. .. A cause in this court may be
continued until the next regular term by
agreement Bills of exception, numbers
one and two, stricken Out and cause con-
tinued. Per curtain.
o. G.. Deuion VS.. John AlcCasland; from
Young. Motion to set aside and strike out
sufficient compliance with the rules. Mo
ton overruled. Per curtain.
Charles Scheuber n Co, vs.. ". T. Sim
mons from Wise. Motion to dismiss appeal
l. The appeal bond gives the style ofthe suit,
the names OF the parties, the date OF the
Judgment and sufficiently describes the
Judgment appealed from. Motion over
ruled. Per curiam.
A. A Spangler VS.. Thomas Holmden; from
Clay. Motion to dismiss. l. a party COM
planning of the failure of the adverse party
file briefs in the court below within the re-
CURED twenty days. must show injury be-
fore he can be heard TO complain. Over
ruled. Per curtain.
Texas and Pacific Railway VS.. Parker &
Baldwin; from Taylor. Motion to strike
out statement of facts. | That the answers
as contained in dispositions used in the
court below. are copied in full in the state
ment of facts without the questions, is no
ground for striking out same. Motion over
ruled. Per curtain.
Galveston, Harrisburg and San Antonio
Railway VS.. a. S. Hatch; from Uvalde.
Motion to strike out briefs and statement
OF facts. |. 1t does not require q written
motion of either party to secure ten days
within which to file statement of facts.
The order may be entered by the court on
the oral request of either party. ,. Briefs
will not be stricken out merely because it
is not shown that copy was filed In the
court below within the required time. In
jury must be shown. Overruled. Per Gu
riam.
w. Westfall VS.. Tom Perry from Kinney.
Motion to strike out assignments of error.
]. The assignments are sufficient COM
pliance with the rules. Overruled. Per
curtain.
Leigh Burleson vs.. B. D. Lindsay; from
Maverick. Motion to strike out bill of eX-
captions. 1. The motion is not well taken.
The bill of exceptions is in substantial conf
pliance with the rules governing such mat
tiers and will be considered. Overruled.
Per curtain.
Cleveland s. Cameron vs.. Mrs. Mollie
Herring; from Greer 1. The motion TO
affirm on certificate meets the necessary re-
Quirements and will be granted. So or
dered. Per curiam.
Thomas Kinley VS.. the State; from
Llano. Motion for certiorari. 1. That
the charge described the offeuse as
aggregated aggravated ASSAULT is imma-
aggregated IN baking up the transcript
IS also immaterial. Overruled. Per curtain.
Fort Worth and Denver City Railway VS..
Bennett s. Co.; from Wise. Motion
for certiorari /. Application to bring up
the original memorandum which was the
basis of the suit in justice court is well
taken Motion granted and certiorari
ordered. Per curtain.
VIM. Davis ct al. vs.. G.. ". Glasscock;
from Williamson. On rehearing ]. The
n4dgment of afiirmance was correct.
Grounds of the motion are untenable.
Overruled. Per curtain.
Leigh Burleson VS.. B. d. Lindsey; from
Maverick Motion to file a new APP
peal bond l. Where the appeal bond is
insufficient in amount, new bond may be
filed in this court. Motion granted. Per
curiam.