The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-12-04
First District.

| baIVtston, Texas. December 3.-The court
| OF civi! appeals disposed OF big batch
OF cases during the past week. today an
nouncing their decisions In thirteen cases
and upon seventeen motions. Opinions
have been filed in sin OF the cases thus far
The case Of Levi Perry VS.. Mrs. s. Il.
Ferry. from Cass county was before the
court OF appeals for the second tine a
somewhat different state OF case being this
tllnc presented IL is suit for certain
properly claimed by plaintin under deed
dated May. 1850. recitlng a sale ON the first
TUESDAY IN April OF that year aud an order
ol confirmation by the probate court. April
1890. The only order Of confirmation pro-
duced by plainiiu is that OF November,
1901, which mentions the sale as re-
sale and oiders the administrator to pro
ceel against the defaulters at the first sale
reported for the deficit In the amount OF
sale; II describes no land whatever IL is
evident there were two sales some of tn.
purchasers at the first not complying with
the terms thereof and hence taking no
Title II is only the resale that is con-
urmed and the lands sold thereat are not
shown by the proceedings. No reason is
gwen Tor the non production OF the order
mentioned IN plaintiffs deed, and the court
can not see that the order of April. 1880
is an express confirmation OF the sale un-
der which pialntiff claims. The court Is
not AZ liberty TO draw differences as to the
existence OF the order OF later date The
party relying upon the order should pro-
duro II or show that he can no, DO so; in
mat event the question will arise whether
or not IFS existence should be presumed
u Is truo that the proceedings Of probate
courts are to be upheld when this can be
uohe by liberal construction. and that they
hfe not to be disregarlel because of uler,
ihal plhntiu fails to show that the probate
court took any action upon the sale which
sur Irlles Tor title, and she has not pro-
luceN evidence Of state OF facts to Justify
iht presumption that the necessary nction
was mad judgment In favor OF plaln,in Ia
reversed and romanded Opinion by Will.
Jams. a. J.
In the case OF the Missouri Kansas and
Texas Railway company VS. William Zwoi-
her' from Fayette. the judgment of the
.oN'r court awarding plalntim, Zweincr
f'9p damages. is affirmed. Plaintiffs wife
rdinK OF horseback along public highway
ana over crossing on defendants road
When the morse stepped upon the end of a
plRhk upon such crossing. which wes
broken defective and dangerous and II
Flew np, frightened the horse aud caused il
10 throw plaintln ) wife to the ground. in
ili'tng injuries complained Of The
court holds that neither defendant nor his
S!,, we're hesI'scrt In crossing the road.
~, D.t uolenuaht was negligent In allowing
VI, Tossing 10 get out OF repair ana In
40. "o5 rNrrr,a'ng ordinary care 20 learn OF
~ 'e,"o,y the deiect. Opnlo' By Will
'", ~ a. D.
r,., nv spp'a Of X 5. Terry. executor.
pialnin In error. vs. Charles Schultz. de-
'su"aHt ~ error. from Marion county. is
ne statement OF facts shows
Judgment f in hi. DT ,,.or was dead when
petition for writ Of error .,otos ~. ~
nut makes no other person party TO ths
I ,.', Ihe error bond is made to the
ia dcod t'n,,or r a. WV same tline mat he
court has M t,,r,.,tl,,a.eH aec's'ohs TINS
Tho cs,o ~ wa.,,,
cjty n, Cor,,,n cn h".iiip thompson VS. the
is rcyarsoa 49,, " ...'. rom Nueoes county.
plaintir Srcd 80 lor new triai.
i,, ta,,' sNVl NV cry ior injuries received
along anI ,n,n "Ln Gu, ny defendant
ferdant's gcnor.i huu'r nlgnway The de-
notl,io, .ss. uru. ',er 70 the plaintiffs
and tha 80, s"s s, ny ,he lower court
~, ne ,'uft dismissed No brief wa,
rc,t,to. n, ~ pu, me court rcvicws her