The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1896-12-24
OPINIONS.

OPINIONS.
Following are synopses of the opin.
ions delivered by the supreme court yes
terday:
NJ. e. Eustis ct al vs.. The City of
Henrietta, certificate of dissent in q case
from Clay county, Second district-Dis,
missed.
AS the questions are now presented, we
are of the opinion that we should decline
to exercise the jurisdiction of determining
them. We apprehend that statute au-
thorizing certificates of dissent from the
courts of civil appeals to this court con-
templates that in certifying the point or
points of dissent, the court shall state
distinctly the very question or questions
upon which the members of the court
are not in accord. Article 1041 of the
Revised Statutes requires the clerk of
the court of civil appeals to send up "a
certified copy of the conclusions of law
and fact found by the court and the
questions of law upon which there is
a division" This may be construed to
mean that the clerk is to send up the
questions as stated by him, but it is
obvious that it was not intended to de-
volve so important functions upon the
clerk. We think the provision should be
construed as if it read "A certified copy
of the conclusions of law and fact as
found by the court and Of the questions
of law upon which there is division
meaning certified copy of the questions
of law. This implies that the questions
are to be formulated; and hence it is to
be inferred that the questions should be
distinctly stated by the court.
An order requiring the certification of
the questions, provided it states the qucs-
tons, is practically certificate in sub
stantial conformity to the statute. But
we think, whatever form be resorted to,
the order or certificate as the case may
be, should set forth separately and in de
tail the points upon which the members
of the court are divided in opinion. There
is in our opinion no difference in this res
Ipect between certifying question under
article 1O43, K. s., and certifying a dis,
sent under articles 1040 1911 and 1912
X. :. But the certificate under article
1913 must be made by the chief justice;
while under the articles last cited the
certificate is to be made by the court. A
different rule was APPLIED in case of dis
sent for the reason probably, that the
judge.
We do not feel that we are authorized
Mt least in a complicated case like this, tc
ascertain by contrasting the two opinions
the questions we are called upon to de-
termine. For the failure of the court OF
civil appeals to state the questions, the
certificate will be dismissed. Because
the certificate was demanded in this
case by one of the parties to the suit, we
think the court ought again to certify
the question as to conform to the statute
Opinion by Gaines, G. ].
Texas and Pacific Railway Co. VS.. G.
A. Stages ct al; certificate of dissent il
a case from Tarrant county, Second dis
trict Dismissed. ..
The certificate of dissent in this case
is subject to the same objections as thai
passed upon this day in the case of Cur
tis VS.. City of Henrietta. 1t is, there
fore, dismissed.
Opinion by Gaines, G. J.
: j. III. Classen vs.. Henry Elmendorf g
al; motion for rehearing in case from
Bexar county, Fourth district. Over
; ruled. i.r ..t, s. Hi
This case came to US on a certifcat,
: of dissent. The court of civil appeal
held that there was error in the judg
ment of the trial court, but ruled ais,
that the appellees should be allowed tel
days within which to file a remittitur TO
certain damages recovered in the cour
) below; that il this event the judgmen
: should be reformed and affirmed; but tina
otherwise it should be reversed and re
manded. To this judgment there wa
dissent. No remttitur having bee
filed. Judgment was entered by the cour
:. of civil appeals reversing and remandin
the case. Appellee's motion for re
hearing being ovPrru,ed, the court at thei
instance certified the point of dissent t
. this court for our decision. On forme
! day we decided the question against tn
) appellees and ordered the opinion to b
: certified to the court of civil appeals.
+ motion is now filed for n rehearing i
this court, in which we are asked to pei
I init the appellees to remit the sum spec
q flied in the opinion of the court of civ
a appeals and affirm the judgment of tn
7 trial court
u Upon certificate of dissent. the juri,
: diction of this court is restricted to
s determination of the very points upo
e which the judges of the court of civil al
q pcals have disagreed. ARTICLES 1910 an
/ 1910, Revised Statutes) We have n
n power to either modify. reverse or affirl
y the Judgment of the trial court or this
!, of the court of civil appeals in such
s case. Overruled.
IT Opinion By Gaines. G. j.
$ Nora Daniels ct al. vs.. Rowena n
u Mason: suit to remove cloud from It'll
IL from Tarrant county, Second distric
u Reversed and remanded
I, James Coffey, common source of It'll
n on November II. 1881, conveyed to NoI
re Daniels. the then wife of Thomas ]. Da,
n iels, the land in controversy, the dee
I; containing no expression Indicating tn;
u the property was conveyed to her as h,
l. separate estate. Nora Daniels, c
le August ., 1882. conveyed said land |
!, warranty deed to John T. Mason. wi
NJ paid valuable consideration thereto
said Mason purchasing in gond faith, h
y lieving that Nora Daniels had n rigl
v to convey said land. said deed being a
&c knowledged in the ordinary form reQuir,
y by the statutes of Texas for single pc
o, son or a feme sole, there being nothil
~ in the deed to indicate whether MOI
n Daniels was single or married beyor
o. the fact that the acknowledgment w;
as above indicated, and her husbar
n did not join her in its execution. Jol
st T. Mason, in 1884, conveyed the land
ID ROwena NJ. Mason by general warran
IN deed for valuable consideration. ri
20 latter purchased the land in good fait
le without notice of the fact of coveture