Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-04
COURT OF APPEALS.
Full Text OF Decisions Rendered in The Fort
Worth District

Court OF civil appeals, Second district, b.
~. IaritOn, chief justice; III. q. Head
and /. w. stephens, associate justices;
w. L. Hun. clerk,
No SO. II. j. Westmorcland. appellant,
vs.. j. II. Richardson, appellee. Appeal
from Hdrdcmun county
CONCLUSIONS OF FACT.
This action was brought 10y appellee,
in the usual form OF trespass To try title.
tu recover possession Of a hulf-SectiOn of
school land situated In Hardeman cOun-
~. Appellant answered by plea of not
guilty. There was trial 10y jury with
the verdict in favor OF appellee. The
record contains very meuger statement
of facts but skeleton, in fact, which
indicates that much Of It's substance was
lost in the preparation; many things
called for aud directed to he inserted
having been omitted. In this unsatis-
factory state of Tie record, We doubt IL
appellant could require Us 10 pass upon
qua, suons which depend for their solu-
ton upou an investigation of the state
mcut of facts. We think, however, that
enough is stated, in a general way, to
warrant the following conclusions.
l. On the Ith day of April, $500, APP
pcliee, "a single iaan, actually settled up
on the land in controversy with view
To the acquisition Of uue by purchase
from the state under the art of 1887,
amended IN 1852, providing for the sale
of school lands.
> He continued 60 reside upon this
land until about August, 1880, when he
was elected 10y a writ of restitution is
sued out of the county court of Hurdc
man county on a judgment therein rem
dored in an action of iOrcible entry and
dctaiuer pending on appeal from the jus
tees court In favor OF appellant
2. On the 10Th day of May, 1890, APP
pelant and appellee each made separate
applications To purchase rhis land from
the state.
4. Appellant never actually settled up
on the land until otter appellee was dis
possessed 10y the writ of restitution in
August: though prior 10 the settlement
of appellee he had, in the year 1883, en-
closed and put in cultivation about 100
acres of the land when he settled on un
adjoining tract supposing lie was upon
the land in controversy. After learning
of his mistake, which was some time prior
10 the settlement OF appellee, ho did not
move on the land until the time stated
above.
.. II does not appear that either of
the applications TO purchase was accept
ed or rejected.
CONCLUSIONS or LAW.
The important question in this case
arises upon the exclusion from the evil
donce Of certified copy of the judg-
mcut of tue county court under which
the writ of restitution mentioned in the
| conclusions Of the fact was issued. This
| copy of the judgment was offered by an
Pellunt iu bar of this action as res adm
| dicatu. The certified copy is not found
| Ia the bill Of exceptions nor ia the state
| ment 0i fHcts, but il Is recitpd Ia the bin
OF exceptions that this judgment was
A al A.
! dotaiurr in which John a. Richardson
was ndludged 10 be- guilty of fOrciblc
| entry and dctaincr against T. j. West.
| mOrclaud in making said entry on the
9Th day Of April, 1890 upon the land in
controversy. This testimony was eX-
| cludru on tle objection that the suit OF
| iolclblv entry Nnd dctainer was peuding
| ON appeal IN the court of appeals We
are Of opinion that this objection should
not have been sustained. Thompson vs.
| Griffin, 80 Texas, l4S; revised statutes
articles 246l aud 2i62
The question of difficulty is. whether.
/ Notwithstanding the insutliciencv of Tho
| objection, material error was committed
| In excluding this eyidcncey BEYOND The
/ statement TINT he was adiudged puilt
/ of making said tOrcble entry on the III
! day Of April, 1870, we are not nforrneJ
] by the record what issue was tried In
J. ~ fOrrible entry and detaincr suit tn
statute defines a furcible entry To be nm
| entry without the consent of the person
| having The actual Possession. (Artire
| .lil) II may be that Westmoreien1
| WAS, by virtue of having 100 acres ~
the land enclosed, held 10 be In the actg.
al possession, and that Richardson. hay.
! ing entered without his consent WINS M
that ground alone adjudged 10 be gnilt,.
i may ~ that under the complaint alsi
~ that case the issue sought 10 IA iitf
! gatSd N fhis sui could not have 49,,