Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-05-08

CIVIL COURT OF APPEALS.


Full Report oil Decisions Rendered by The
Court Tor The Second District
No. $50. Frauco-TeEan Land company up
pelant, VI. Mrs. H. u. and ~ II. How,
Gppellees. Appeal from district court oi
Nolan county.
CoNCLusIoNs OF FACT.
The land in controversy Is 60 acres known
AZ survey No. 10 block - patented 70 ny
Fidelity insurance, Trust aud Safe DepYsll
eotlpniiy asslgnee " the Texas and Paenc
Hallway company, May ~ l9tu. appsi't ~
has a regular chain OF transfers nom tn'
palentee. The appellces v,alin unus r,.'dsr
against appellant me hfst u . Juuk No.
rendered "a the county court o. Noinh YoH e.i59
May ~, 1885,, Ia cause ~ - tnilllitu +, snd
lett and Arnold vs.. 1he Franco IeAah Lnhi
company. Illls suit was Instituted M wy
Justices court but taken to the county Sy Ht.
BY appeal. while this cause was penuliis
j. w. Germany was appointed receiver OF
the ASSETS OF Neblett uud Arnold ana WIS
also elected county Judge ana Ms such Juuke
while the Vasr was penang N ms oout
entered an order as follows: 'NeDlttl anu
Arnold W FrnucolIp1an Land company 81.
a. appeal from !. II. This cause was this
day ordered transferred 70 tue district oNuil
uf Nolan county upon motion VI defrndunt Z
attorneys and the clerk uf this court on.
ed To send up Transcript OF SAINT : No
order was entered oct =, 1881. me MOTION
referred TO IN SAID order Is ~ follows
company. Now cUrprH defendant by at-
tOrfryA and respectfully says this court ~
without jurisdiction ~ Try thls case because
they say the hrm OF Neblott ana Armour
TO vii: j. W. Nphlett and u. ), Arnold slnce
tile illuC OF this suit has been uisHONtl
aud the assets " said iirin has been placed
In the hands OF receiver That any ludg-
mpnt thcse plaintiffs might recover would,
under the law, be assets In the hhnuN OK
such receiver for distribution under Tder
OF the honorable district court Of Nolan
a hat b
ILLS court II receiver Of said estate OF Neh'
lett anu Arnold and as such receiver Is III.
tfestcd IN the result OF tlsiuilhA SUIT anu
therefore disqualified from Tying the same.
Wherefore defendants move this cause be
transferred 10 district court Of Nulin
county" This motion was sworn to by one
OF the attorneys Of apt liant In that ease.
Ihr papsrs were never IN fact nled In the
district court aud the cause remained upon
the docket OF the county court until the
expiration VI the term Of office Of Germany
ny county Judge, WherrnpOn on the 2nd day
~ May, 1887, the following order was en-,
tered In the county court; "Neblett aud
Arnold ". frunco'te1an Land company
No. iS. Appeal FROM J. T.. 'Ihis cause con.
lug gu to he heard upon the motion Of
plaintin to set aside the order Ia this cause
entered on the 24ud day NJ October, 1885,
tAuhIcrrlng this cause to the district court
Of Nolan county, Texas, for the reason tbAt
there was no reason stated In said order
Tor transferring said cause and tue court
after hearing tue law Is OF tile opinion tnut
tho law IL In favor Of the motion and il
was therefore ordered that said order he
Hut aside and vacated and that this cause
stand On tho docket ~ this court for trial 70
II docs not appear from the record That
any notice Of the motion referred to IN this
1fntr mas given to appellant
prior TO lis entry. This order
was made 10y j y. Hanna rs county Judge
he belng tie successor OF Germany. IN
May 10 1851 Judgment by default was
rendered IN .aid cause No. 10 Ia favor NJ
Neblgtt and Arnold against appellant before
sAlu Hanna county, iuunts a. lti pf
yl34 10 with per cent Interest from Dee
~, 1881. aud nppolees claim under a regular
sale under tliA Judgment.
nv second Judgment referred TO above
uhder which ppncileea claim was rendered
by j. I. Fosy, Justice OF the peace or pre-
a In fayor n Lippett. Lcate az
W The Franco Texan laud company, Aug
~ 1887, for the SUN uf SiOO With Interest 1T
me rate OF per cent per nnnum Appel
lees have y regular chain " tile under u
sale upon this Judgment. This judgment was
against appellant as garnishrc. The writ OF
gArgNhmenl having been sued out Ia suit
vs., y, j. Fritz ana Sou In which thpv re-
covered Judgment for the sum OF stiga5
Win Interest and cusis Ia tilis suit thu
nrm Of Cowau and POscy were attorneys for
the plaintiffs. the posey or said INN bring
the Justice VI the peace who uftorwuri rend
cred Judgment against appellant as gtnl
Of the peace and issued the garnlshment
foaey was not a regular licensed attorney,
but was engaged Ia The business Of "a land
agent be aud Ills partner. cuWAn who was
lawyer agreeing "a pool tIrlr earnings and
divide thrm equally. CoWuu To attend 10
the law hurlncss and poscy the land agency.
i'9scy also was security ON the bond OF
VIII Of garuishmcnt. Judgment was reud
cred IN favor " nppellpus Nov. is. 1870
upon me verdict Of a jury liz answer 10
snccinl ISSUES submitted hy the court frnn
which this appeal Is prosecuted
OPINION
The court below treated the Judgment
Rendered 10y I'oscy IN favor " Lippett, i.cake
Co. against appellant Us gnrnlshcr
as being void In this We think there was
no error. ioscy was Interested equally with
towan Ia the Zee to be earned IN Tic iirm
N THIS case whether he was lccnsed Al,
torhty or not, We know VI nothing thai
would Affect the legality OF the ngreemrnt
made between him and hts purtuur Cowan,
70 divide their respective tarnlngs in the
nanucr set FORM In the conclusions OF fact
anu we think this would constitute such an
interest III him IA would disquallly him ns
guitc from trying the caac. the iurv found
thni he was peculiarly Interested therein.
llodde Us. Susun, ~ Texas RAJ M nisn
think he was disqualified by reason M MI
being u surety on the bond OF the plniniin
" obtain the garnlshment, In Ho,llr ~
susan supra Il was held that Justice 10.
lNirl To surely ON Vlaim bond was dis.
Qunllhcd. II has also several times neoi,
nell lhat a surety upon a cost bond was
disqualified rs witness by reason " his
Interest In the reault of the suit frum testi.
iAing In the caHV. bcnncit vs.. Duwiiur
~ Texas, GOO; Diakc W Brnndrr. < 'rrtns
all Gould va Heal. ~ Texas, Gil: Frcciunn
vs. Perry, - Texas, Uil The similarity of
the reasons which asquallfy a iutlae nnl
4 Witness unon the 4aopnl Of Interest In
The result OF the suit was recognized IN
SIMPSON W, Broiherion, ~ 1exus. tUI An
nellrcs' cfoss-assignmcnts uf error unst
therefore be held To be- not well tnkru
We understand from the rernrd ana brt,f,
OF Tue parties that tho c0urt below hrIJ III,
order entered by Germany a. tountV t,t,n
transferring the cause Of Nrblett sni A.
nplu Va. Franco Texan Land t,liupauV IT, ~
district court 70 be Invalid. hut Ne are nan
clear upon what ground this rlin, VA
MsfI' i seems that the court below nts,
SUSTAINED the order entered IN Uer,nni,Y,
sneeesspr setting aside this order ~ f.sss
ivr' u the court below was OF opinin,, ~,
ne orlcr entered by Germany Niis "a f,,i iiii,s
because Il docs not state tho ,r,n,'t " y,
MS disqualification we think ID ,f.f,,i \,
NE vase Of Bates vs. Casey aud S,yasr, ~, ~
ieNas orr, IL " salds 'Thls cntlsr va,
transferred frum the county 10 Ia, ,i,s,ria,
oouit because The county Mdre v,ns ~
qualified TO hear aud decorating Il. Tho
f,punls of HIS disQualinl alton are mn ~
~ nor do w think Il nocpssars tha, ,is,.
suoud he When he r,seucs hltiSeif i,,i,s
thei are questioned before the oaust rl,,i,s,
lhiS court. II party wishes to disnnt,. Nv.
intt that county judge ~ u!souuli1,st hs
yln ny cnlling Il IN question either IN lH..
nleltiNt or county court have thp ,se,,,t,,tN