The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-03-28

erred therefore in reversing the judg-
ment of the district court. The judg-
ment of the court of civil appeals is re-
versed and that of the district court is
affirmed. Opinion by Brown, ].
Huff ct al. vs. Crawford ct al; certi-
fled question from Wichita county, Sec
ond District.
&. f. and S. Y. Collins are among the
defendants in this action, which is one of
trespass to try title. They pleaded the
statute of limitation of five years. Dur
| ing the time necessary to complete the
bar, the above defendants have been abb
| sent from the state and residents of an
other state, They have b.eo in posses
sion, however. of the land in controversy
| through their agents.
Question-'Do the provisions of article
3216 Revised Statutes preclude these
defendants under the facts above stated,
from interposing the defense stated"
First-It is contended that the Opin-
ion in the case of Hutton vs.. Nichols, 90
| Tex, PIT, is not to be regarded as an in
depreciation of this article; or, if so, that
the disposition shown therein made of
this question is abiter dictum.
The case referred to contains the only
decision of this court which bears directly
upon the question. The question here
was presented TO this court in the case
cited but was not involved in the decis-
ion. When the case was decided it was
the settled law of this state that the pro-
visions of the statute of limitation, in re-
gard to absent defendants, did not apply
to persons who were absent from the state
at the time the cause of action accrued.
Second-We therefore regard the ques-
ton of the applicability of article 3216
| inf fn nf.fin 30
covery of real estate as an open one in
this court, and we are of the opinion that
it applies to all suits alike. That article
is but q re-enactment of section % of the
acts of limitations, approved February
3, 1911.
Similar PROVISIONS, couched in 1.-THE
same general terms, have been held to
apply to suits for the recovery of lands,
by the courts of other states. (43 Kan.
SO; % Kan. 80; SO la. 1856; 10 Ind. 1873;
70 Ala, 227) We have been cited to no
contrary ruling nor have we found any.
Third-The question certifies does not
advise us whether or not the defendants
named were residents of the state at the
time the adverse possession was taken
by their agent. We therefore cannot
give an explicit answer. If not, then the
statute ran in their favor until their re-
turn to the state, if they ever returned.
If they were within the state at that
time, then during their absence the run.
ming of the statute was suspended. We
are of the opinion that possession by an
agent should be deemed to have the same
effect as possession by tenant. Opin
ion by Gaines, G. ].
Wichita Valley railroad company VS.
Perry, from Knox county, Second Dis
trict.
The appeal in this case was dismissed
by the court of civil appeals of it's own
motion, because the transcript failed
to show that notice of appeal had been
given in the trial court. Appellant filed
a motion to set aside the order of dis.
nlissal, in which it was alleged that the
notice had in fact been given and had
been entered upon the judges docket
This motion was supported by affidavits
The motion was overruled. This was
error. CIV. U. Tel. Co. VS.. O'Keefe, de
cided at present term; At Tex, 1879
The judgment of the court of civil ap.
peals is reversed and the cause remanded
to that court. Opinion by Gaines, G. j.