The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-05-04
THE HIGHER COURTS.

Mesia and wife vs. Lewis and wife,
from First supreme judicial district.
This case comes up on certificate of
dissent.
Appellant brought this suit to re-
cover tract of land, pleading among
other things, previous judgment in
their favor against Joe Lewis to which
his wife was not party. The de.
PENDANTS set up in reply that at the
time the former suit was brought
the land was their homestead and con
tinued as such until the time they
filed their plea. Upon the trial evil
dence was introduced tending to show
that the law had been abandoned as
q homestead by defendants. Plain
tiffs requested a charge to the
effect that if abandonment was proved
that they were entitled to recover by
reason of their former judgment, AL
though the wife of Lewis was not a
party to the former suit. This charge
court OF civil appeals sustained the
lower court upon the ground that a
Judgment against the homestead was
void it the wife was not a party to the
suit, and that subsequent abandon
ment did not make it operative. The
dissenting judge agreed to the find
idg not on the grounds set forth by the
majority, but because abandonment
was not pleaded.
Under section 80, of the act of April
10, 1892, this court has jurisdiction
upon certificates of dissent only
in cases of disagreement upon
ques tions material to the decision of
the case.
The abandonment claimed by plain
tiff did not occur until after the last
plea in the case was filed. In cases of
trespass to try title, the plaintiff must
recover on the the title existing when
suit is filed, and to avail himself of an
collins vs.. Ballow, 70 Tex There is
an exception where subsequent to the
suit he buys in an outstanding title.
(Morten VS.. Parker, 26 Tex, 1881
This case comes under none of the eX-
captions. The plaintiff not having
amended after alleging abandonment
could in no view of the question upon
which ,he judges differed have
availed himself of that abandonment
The question was therefore not ma
terial, ana hence it follows that this
court has no jurisdiction of the case,
and it is therefore dismissed. Opinion
by Gaines, j,
Darnall VS.. Lyons, from Second SUI
preme judicial district. In this case
certain questions for decision are GER
titled to this court In accordance with
section 35 of the act of April Is, 1892,
In the certificate three written instru-
ments are set out. First, q subscrip.
ton offer of citizens of Sherman for
the purpose of inducing the construc-
ton of branch of the st. Louis, Ar
kansas and Texas railway into that
city and appointing committee to
make a contract. Second, the con-
tract made by the committee Third
contract between Brithan q Lyons
Oh the one part and the railway COM
pany on the other, in which the
former bind themselves to do certain
acts in consideration for which they
receive the subscription list. The ques-
tions gu omitted are: First, whether the
subscription agreement is a separate
contract. Second, whether under the
terms of this agreement the commit
tee exceeded their authority Third,
whether in suit by the assignees part
failure of consideration can be pleaded
in defense.
The first question must be ans ered
affirmatively. The expression 1--WE,
the undersigned, is qualified by the
expression leach subscriber should
be liable only for the am"unt opposite
his name.
The second question requires the
construction of the subscription con-
tract and the contract between the
committee aud the railroad company.
The subscription list was signed upon
the condition that the railway compa-
ny should within reasonable time
construct, maintain and operate a rail-
road from Mt. Pleasant to Sherman,
together with maintenance of certain
depot grounds. The committee was
empowered to make a suita BILE con.
tract and arrange outlots The con-
tract which they made bound the cit
liens to provide right of way between
certain points and grade it, the rail-
way company on their part agreed to
finish the road by certain time. 1t
seems apparent that the committee
exceeded their authority. They were
not authorized to make any contract
but contract for the construction of
the road by the company in consider.
alton for the amount promised them.
Under the contract actually made the
railway company was not bound to do
anything until the right of way was
occurred and graded. The citizens did
not promise this The contract seeks
to bind them to do what
they did not contemplate doing
The subscribers did not empower
the committee to, stipulate for Its
promise of BrittonN & Lyon to do o
part of the work and that of the rail
way company to do the remainder
The contract made was not contem
plated by the parties to the subscrip
ton list and therefore they are not
bound by it. The second question
must be answered in the negative. In
this view of the case the third ques
ton becomes abstract and need moi
be answered. Opinion by Gaine', J
Chief Justice StaytoD agrees in the