The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1892-10-27
THE HIGH COURTS.

| Third district met "Wednesday, the 9tn
and made the following disposition of
cases:
Wells Fargo Co., VS.. Geo. Beach,
from Ell Paso county; reversed and re-
manded.
P. A. Kellar vs. Sun Mutual Insur'
ance company, from Ell Paso county.
There being no assignment of error
and none being apparent from ike
record the judgment is affirmed.
B. P. Bigham VS.. John Mcdowell,
ct al. from Bell county; affirmed.
Charlotte II. Jones ct al. VS.. j. B.
Lee. from Bexar county; appeal dis
missed.
Edward Martin VS.. Western Union
Telegraph company, from Bell county;
reversed and remanded. -,.
Patrick McHugh ct al. VS.. Nichlas
Gallager, from Travis county. Joseph
Limerick made a conveyance of his
property to John Bremond, who
decided same to appellee for the Cath
Ollie church of Austin. Appellants sue
as heirs of Limerick. Evidence eX
planning the transaction was sought
to be introduced at the trial and was
excluded, The court holds this to be
reversible error and says: when
doubt exists as to the intention of the
makers of an instrument after all the
facts ascerta inable from the face of
the instrument are noted, evidence
should be heard of such facts and cir
cumstances connected with the execu-
ton as would tend, not to contradict
the terms of the instrument, but to ex
plain the purpose and meaning in
order to arrive at the intention of
the makers" Opinion by Fisher, G. J.
Justice Key did not sit in this case.
d. @. Freeman VS.. Joe Hamblin and
wife, from Milan county.
In the sale of some land the appel
lee made mistake in the measure
ments, thereby causing his homestead
to be included in the part sold. This
land was levied on under execution
and afterwards bought by the appel
liant of the vendee at the execution
sale. When appellant discovered that
the land named in the several deeds
included part of the homestead, he
made application for an alias writ of
possession to cover his addition. APP
pellee and wife resisted this by a
prayer for an Injunction. which was
granted, and from which judgment
this appeal was taken. The court
save in strict conformity to statutory
requirements, divest the wife of the
right of homestead and that the judy
ment in case where the right of
homestead has not been pleaded will
not bind the wife who was not party
to the proceedings. The judgment is
affirmed. Opinion by Justice Collard.
Ben Kiolbassa VS.. James Raley
from Bexar county. The homestead
of Thomas Martin was sold after his
death, and the funds accruing there
from held by the administrator were
claimed by two parties, Kiolbassa
who presented judgment obtained
in 1883 which was allowed as a third
class claim, and Raley, who presented
note made in 1884 with a deed of
trust on he homestead, which was al
lowed as a fourth class claim. The
county court ordered Raley's claim
paid, and was sustained by the dis
trict court, from which decision this
appeal was taken. The court says:
no have warranted the court below
in classify ing his (Kiolbassa) claim as
one of the third class as to the fund
in controversy, he should have shown
that the land, the sales of which pro-
duced the fund, was subject to forced
sale, and therefore to his judgment
lien, at the time said Judgment was
recorded, or at any rate. at the time
Martin executed the trust deed to Sc
cure appellee's debt" The Judgment
is affirmed Opinion by Justice Key.
William Reed ct al. VS.. Volney Cav
tit ct al from Bell county. This suit
though in form of trespass to try title
was virtually made one OF boundary
by agreement of the parties. Judg-
ment was given for plaintiff generally
and execution for land as described in
plaintiff petition, issued. The court
saws: "In such a case the verdict and |
Judgment should definitely fix and
establish the location of the line in |
dispute with reference to some known |
object then in existence, concerning the |
identity and locality of which there is |
no dispute" The objects Of identity |
called for in the field notes having be
come misplaced by the ravages of
time, the judgment should haye def
nitely fixed the locality Of the bounda.
ry line by reference to objects then in
existence on the ground. For this err
ror the case is reversed and remanded.
Opinion by Justice Key.
The Milmo National bank VS.. A. N.
Carter ct al, from Bexar county. This
suit was brought against Carter and
Bergstrom as partners. 1t was found
that partnership under the firm name
of A. N. Garter was formed in Septem
Der, 1881, to last one year. In October
TO 1881 Carter began obtaining ad-
vances from the bank, having tod
them that Bergstrom was a partner.
Advances were gotten until 1888. The
court holds that if it was true that |
Bergstrom was partner at the time |
the bank received information Of the |
fact, that it would make no difference
from what source such information |
was received, he would be considered
as to it a partner and would not be al
lowed to claim that he was dormant |
partner. The lower court charged |
otherwise and the case is reversed and
remanded, Opinion by Fisher, G. J.
NOTES AND COMMENTS.