Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-02-07
PART TWO.
HIGHER COURTS.
DECISIONS RENDERED BY THE
SUPREME COURT
at the Galveston Term-Cass Involving
Dedication of Street-LiabIIity of
Reeeivers-Other Cases Settled.
Special to the Gazette.


peal from Williamson county. The ques-
| tion involved is agreed to be as follows, to.
wit: 'sAs the law Art. 1899, Rev. Civil
Stats. stood on the I'D day of December,
1889, IS the receiver of q railroad liable as
such for injury neghgently inflicted upon
and resulting in the death of an employee
when the injury is sustained while the rail-
road is being operated by the rece:verl IN
other words, IS the receiver of railroad
operating the road within the enumeration
of the statute, either as proprietor, owner,
charterer or hirer.n The court below suS-
tanned Z demurrer to the petition. The
statute having application 10 the case IS
article 1899. Held: That the receiver OF
a railroad is not within the enumerations
of the statute. The action being statutory
one, recovery from injuries resulting in
death cannot be had. Affirmed. Opinion
tan exhaustive one) by Stayton. c. J
Thomas and Richard Aston vs.. S P En-
merson; appeal from Dallas county. Suit
BY appellee to recover lands which once be-
longed TO John /. Aston and the rights Of
the parties depend on the validity of 4
judgment OF partition among his heirs. An
agreed case. aware the defendants (minors)
properly before the court2 Nothing in the
record showing they had been served with
citation. The court appointed 4 guardian
adlItem who represented them. The ludg-
ment was not void, but at most only void
able The Judgment of the court below
holding that the minors were bound
By the Judgment. Affirmed. Opinion by
Stayton, j.
City of Dallas ct al VS.. Western Electric
Co. appeal from Dallas. Writ of garnish-
ment was served upon the city of Dallas by
appellee. The city admitted that it owed
the party, but set up an ordinance in de-
Tense of its liability which is as follows On
partl: Nor shall the city be IL
aale to punishment on account OF any debt
it may owe, or funds il may have on hand
due any person, nor shall the city be
required to answer any writ OF garnish-
ment on any account whatsoever" Court
below, taking the position that said ordi-
nance was 'uucoustitutional, rendered judg-
ment for plaintiff Held: Error. Appel
liant was chartered by special act of the
legislature and therefore espresSly eX-
cepted from the operation of section 90, ar
ticle 2 of the constitution. Its said ordi-
nance is valid. Reversed and dismissed.
Opinion by Henry, j,
D. Cooper vs.. the City of Dallas; sp-
peal from Dallas county. Suit by ap-
pellant 10 recover damages caused by an
overflow of his premises by water, alleged
to have been caused by the city's having
graded the adjacent streets higher than
his lot. The court charged the jury that
the city had the right to grade aud pave the
streets and to construct the sewer land
further that plaintiff contributed by his
own negligence TO the damage. He IS not
entitled to recover for such damages; YOU
are therefore instructed to return verdict
for the defendant" Held: Nothing found
in the record justifying such charge.
Reversed and remanded. Opinion by
Henry, ].
e D. Gray ct al. Us. Jennie Thomas ap-
peal from Jefferson county. Appellee sued
on promissory note which had been given
her husband, George Thomas, for a certain
tract of land which plaintiff alleged was the
community property of the deceased hus-
band and herself Clara Adams, Joined by
her husband, interviewed in the suit; claimed
to be entitled to the proceeds of the note;
charged that she was the former wife OF
George Thomas, and that the land was the
community property of herself and said
Thomas. That on account of unfaithful-
ness on the partof Thomas she had Obtained
q decree of divorce from him. That pend
ing suit for divorce Thomas had transferred
the land above mentioned to another with
out consideration. in order to desraud her.
That in the division of their community
property the said land nad not been constd-
cred. Damur TO intervenor's petition was
sustained. Held: Error Plaintiff on the trial
testified that the note had been lost. No
affidavit of loss had been filed, but the
court allowed one filed at the time the
question was raised. Held: No error to
allow proof without any affidavit having
been filed at all when loss is shown. lG6
Tex, 81. Reversed and remanded. Opin-
ion by Gaines, j.
s. Parisa VS.. City Of Dallas; appeal from
Dallas county An agreed case. Suit by
appellant for a strip of land taken for
street It was outside the corporate limits
when plaintiff bought it together with the
balance of the LOTT from one Clark. Strip
lay exactly in line with Boil street. Plant
IFS fence was on line Of Boil street, leav-
ing contested strip outside of the in
closure-feuce having rotted down plaintiff
built another in the same place Plaintiff,
so the court below found, went to his ven
dor, Clark, and told him that the part of the
lot now in dispute was in the street and de-
manded payment for it, which demand was
complied with. Afterwards the city limits
were extended, and when the city under
took to work the strip in dispute as I part
and extension Of Boil street plaintiff OBJ
jected Held: The facts show a sufficient
dedication to public use. Affirmed. Opin-
ion by Gaines, j.
W. c. Ballard ct a. VS.. w. C. Carmichael
ct al; appeal from Haskell county. Action
of trespass TO try title by appellees for the
recovery of 1876 acres of land. The opinion
is forty-three pages in length. The points
plaintiffs IN the court below obtained a
deed (confrmatory of previous one) after
the suit had been instituted and by amend
ment set up in addition to the original one
new trespass and eviction since institution
Of the suit. Defendants excepted to the
amended petition, which was oyerruled.
Held: No error. Plaintiff may set up new
grounds of recovery which have occurred
since the bringing OF his suit without
abandoning his original cause Of action. An
instrument was introduced by plaintiff
which seemed to have been receipt for
money as consideration for former con-
veyance of land certificate which was
signed by wife and joined by her hus-
band This was objected to because not ac-
knowledged as statute requires for married
women. Held: The land certificate was
personal property, and privy acRnowl-
edgement by the wife is not necessary to
convey her separate personal property. A
deed signed by vice-preSideut III the alb
sence of proof TO the contrary is valid. and
it viii be presumed that the vice-president
was the .'presiding member" of the cor
poration. r. 5. Art. 600. Reversed and
remanded, each to pay his own costs.
There were cross-assignments Of error
Opinion by Gaines, J.