Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-05-10
SUPREME COURT.
DECISIONS RENDERED AT THE
AUSTIN SITTING.
The Findings-Hon. John W. Stayton,
Chief Justice; K. r. Gaines cand
John L. Henry, Associate Judges.

Kicker Lee & Co. VS.. D. D. Shoemaker;
from Dallas. Suit by appellee TO recover
damage from appellants and the Gulf, Colo
RADIO and Santa t'e railroad company by
reason of certain personal injuries sustained
by him. l. Kicker, Lee & Co. were con-
tractors, building and constructing road for
the Gulf, Colorado and Santa F'e railway.
While working for appellants appellee was
injured. He brought this suit against the
railway company and prayed in the
event it was not liable. and the appellants
were found TO be independent contractors,
then he prayed for Judgment against the
latter. Appellants answered in q plea to
the jurisdiction under oath, alleging that
they were citizens of Galveston county, and
pleaded their right to be sued in that
county, which plea was overruled. Held:
The ruling was erroneous. The cause of
action herein is not within the meaning of
article 1l9S, Revised Statutes, a ''trespass."
rs Tex, 80. The plea to the Jurisdiction
was well taken. g. The petition herein
was fled September %, 1886, the injuries
having occurred the 9th of May preceding.
Citations were issued January IL, 1888.
The only excuse alleged for not sooner issu-
ing citation was that appellee was sick, and
that he did not know where appellants
could be found. The clerk did not sooner
issue citation because no provision had been
made by appellee for costs of suit. Appel
lee in his petition alleged that appellants
resided in Galveston county. Held: We
think the facts shown would not stop the
running of the statute of limitations, and
that the court should have charged that the
delay il prosecuting the suit was unreason-
able, and that the facts relied on by appel
lee to excuse it were insufficient. Reversed
and remanded. Gaines, j.
James Johnson ct al. VS.. NJ. A. Martin,
eXecutriX; from Brown. Suit by appellee
on promisory note and to foreclose deed of
trust. Appellants claim the land as their
homestead. l. Appellant having stated the
facts the court did not err in refusing TO
permit him to testify, that at the time Of
the execution of the deed OF trust, he had
no other homestead than that on which the
deed of trust was given, the proposed
evidence was merely the conclusion of the
witness. 2. The court did not err in
excluding testimony TO the effect that before
the deed of trust was executed, appellant
johnson and his wife were on the land and
agreed between themselves to build on it
in the future and make it their homestead.
That part of the rejected evidence which
was not conclusions of the witness, was
immaterial- The ceyidence sustain the
Judgment. Affirmed. Henry, ].
NJ E. Breckenridge vs. W. Y MILAN;
from Travis. Suit by appellee against B.
S Afford On promisory note and to fore
close a mortgage on soda fountain ap-
paratus. On the same day the notes were
executed Afford rented storehouse from
appellant for no definite period of time,
but at the rate of $50 per month. He con-
tinued to occupy said premises until June
"a, 1890, at which time he had paid all rent
falling due to October Is, 1889. Appellant
interviewed in the suit, claiming a superior
lien on the mortgaged property, by virtue
of Afford being her tenant. Held: The
Judgment is correct. The mortgage
was the superior lien. This question was
decided adversely to appellant in 90 Tex,
GO. Affirmed. Stayton, c. ].
King F. Fordtran vs.. G. W. Brown; from
Val Verde. On rehearin9. L The former