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All Reporters → sw2d → Volume 92

Opinions in sw2d Volume 92

Affirming. To recover damages to his residence, its contents, and the yard to his residence, of the city of Covington, caused by the city maintaining inadequate ditches on its premises and permitting the same to become stopped up, thereby causing the water of ordinary rainfall, flowing from its premises, to be accelerated and concentrated onto their premises, Claude and Anna McKinney brought this ...
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Opinion op the 'Court by — Affirming. Bernard Posey brought suit against T. W. Hinton to recover on a note for $500, and procured a general order of attachment, and McCracken county was summoned as garnishee. It was claimed that the county was indebted to Hinton for services rendered it by him as an accountant under a contract with the fiscal court to audit the books of Mc...
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Affirming. John D. Adams appeals from a two-year sentence for malicious shooting and wounding with intent to kill. First, it is claimed that the plea of former jeopardy should have been sustained. On this point the facts are: After the case had been called for trial on the original indictment and the jury had been accepted and sworn and the commonwealth's attorney had stated the case, appellant by...
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Affirming. Charlie Kinder appeals from a judgment of manslaughter with a penalty of twenty-one years in prison. He and the deceased, Burt Gambrel, with Bill Jackson and Arthur Mayo, returned to Barbourville about 2 o'clock in the afternoon after riding around for some time in Kinder's automobile, a $65 Ford. Some, if not all, of the party had been drinking. There is evidence that Kinder gave Gambr...
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Opinion op the Court by —Reversing. The appeal is from a $500 judgment for the death of a six months’ old child, Garland Kirk, charged to have been caused by the wrongful and negligent turning off of gas from his parents’ dwelling. The appellant owned a gas lease on a .certain area in Martin county. Louis Kirk, the father of the child, owned the surface of about 30 acres, on which he lived....
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Reversing. This is the second appeal herein. See McMillan v. Massie's Ex'r, 233 Ky. 808, 27 S.W.2d 416, 422. On the first, the liability of the estate of W.C. Massie to Sarah McMillan (now Sarah McMillan Paul) for services rendered him, which are described in our opinion, was the sole question involved and determined. The opinion directed a reversal and the entry in the circuit court of a judgment...
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Affirming. The receiver of the Louisville Trust Company brought an action to recover statutory double liability which had been assessed against the BancoKentucky Company, a Delaware corporation. The circuit court rendered judgment against the BancoKentucky Company and its receiver in the sum of $1,632,677, the assessment having been made at the rate of $100 per share, because of 16,326.77 shares o...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 259 Affirming. This is an appeal from a judgment for $2,230.50 recovered by Felix Brashear et al., entered July 17, 1934, the enforcement of which has been stopped by a supersedeas served on them August 16, 1934. There were other claims and another defendant,...
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Reversing. On August 28, 1933, appellee is decedent, Everette Combs, a boy ten years of age, was taken to the Hazard Hospital for a tonsillectomy. The child was in apparently good health at the time of the operation. The operation was performed by the appellant Dr. B.M. Brown, an eye, ear, nose and throat specialist, assisted by Dr. J.P. Boggs, who administered the anesthetic. There is no dispute ...
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Affirming. This is the second appeal of this case. The opinion on the prior appeal is reported in 257 Ky. 622, 78 S.W.2d 745. The appellant, Commonwealth Life Insurance Company, on October 2, 1928, issued to August Ovesen a policy of life insurance which contained a rider providing for the payment to him of a monthly income if, as the result of injury or disease, he should become totally and perma...
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Reversing. This is another action for the approval of a plan of the reorganization and reopening of a state bank as provided for by section 165a-64, Kentucky Statutes (Baldwin's Supp. 1933). The Bank of Prospect, Jefferson County, Ky., closed its doors and was placed in the hands of the banking and securities commissioner of this commonwealth on the 7th day of January, 1932. Thereafter, on the 29t...
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Reversing in part and affirming in part. This is an appeal from the judgment rendered in the above-consolidated actions, brought for certain alleged shortages of the executors, and in failing to administer and fully distribute the testamentary estate received according to the directions and provisions of the will. The record discloses the following to be the facts out of which these actions arose:...
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Affirming. J.W. Glasscock, prior to and on the 9th day of December, 1929, was the owner of a tract of land situated in Boone county, Ky. He decided to, and did, divide about 43 acres of it into lots, and sell the same to carpenters. Accordingly he entered into separate contracts with Otto Browning, Lawrence J. Thompson, E.S. Mattingly, and others, agreeing to sell and convey to each of them certai...
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Affirming. From a $7,500 judgment in favor of the appellee for the alleged negligent killing of his intestate, the Gatliff Coal Company has appealed. *Page 311 The Accident. On Tuesday, October 20, 1931, the Gatliff Coal Company put Ernest Hill to work drawing a pillar between rooms 19 and 20 on the east side of its tenth right entry off of its third main. While he w...
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Reversing. J.M. Trimble, who owned a large boundary of land in Johnson county, died in November, 1925, leaving a widow and 13 heirs. On September 2, 1926, Wince Trimble and other heirs of J.M. Trimble filed a suit in the Johnson county court seeking a partition of the land owned by J.M. Trimble at the time of his death. The court appointed commissioners, who divided the land and executed deeds to ...
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Reversing. This is an appeal from a judgment of the Martin circuit court sitting in equity. Frank Crum, a World War veteran, died intestate some years prior to 1931. He had a policy of War Risk insurance in which his mother, Jane Crum, was designated as beneficiary. Mrs. Crum was paid the regular monthly installments of $57.50 up until the date of her death in the latter part of 1931. At that time...
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Affirming. Appellee Strunk, a coal miner of ten years' experience, about twenty-seven years of age, while working in the mines of appellant on March 18, 1931, suffered a severe injury to his hand by the explosion of a dynamite cap, losing the first, second, and third fingers of the right hand and suffering such injury to the thumb and small finger as to further impair the use of the hand. The part...
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Affirming. Between 10 and 11 p. m. on June 30, 1935, a south-bound freight train of the Illinois Central Railroad Company pulled into its yards at Paducah, Ky. walking along this train, W.H. Purdew, a car inspector and R.R. Fuller and Richard Kelly, special agents or detectives for the railroad company, discovered a rope which had been tied to the running board running *Page 172 lengthwise at the...
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Affirming in part and reversing in part. The appellee and plaintiff below, William C. Taylor, and the appellant and defendant below, Sarah H. Taylor, are colored people residing in Jefferson county, Ky., and were married in 1910. No children were born of the union, and on June 18, 1934, plaintiff filed this divorce action against defendant. As grounds therefor, he alleged in his petition that they...
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Reversing. At its 1912 session, the General Assembly of this commonwealth enacted chapter 132, p. 483, of the Session Acts of that year. From time to time some of its sections were amended, one of which amendatory acts was chapter 114, p. 502, of the Session Acts of 1918. At the time of the commencement of proceedings for organizing the district involved in the instant case (February 28, 1920), th...
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Reversing. Appellee, prior to and on February 8, 1932, was operating a general store in Caldwell county, and in April, 1931, took out a one-year policy with appellant, insuring his furniture and fixtures to the amount of $600; on December 12, 1931, a one-year policy insuring his building for $600, and on February 1, 1932, another policy insuring the stock of goods for $1,500. It is admitted that o...
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Reversing. On February 16, 1828, the Provident Life Accident Insurance Company, of Chattanooga, Tenn., hereinafter called the company, issued to William Y. Bailey a policy of insurance which, among other things, provided for monthly indemnity in the sum of $50 for a *Page 164 period not exceeding one year for disability resulting from sickness contracted or beginning during the life of the polic...
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Affirming. This is an appeal from a judgment of the Shelby circuit court based on the verdict of a jury in the sum of $1,048.04, in favor of the appellee, J.B. Bell. Appellant, Refiners Oil Corporation, was the plaintiff below. It filed its petition against Bell alleging that on June 16, 1931, it entered into a commission and agency contract with him for the distribution, handling, and storage of ...
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Reversing on original and affirming on cross appeal. This is an appeal from a judgment of the McCracken circuit court sitting in equity. In February, 1926, the Lakeview Country Club, a corporation, borrowed $40,000 from the Louisville Title Company as trustee for bondholders. It secured this debt by a mortgage on the club's property in McCracken county. The title company issued forty bonds in the ...
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Affirming. This is the second appeal of this case. The facts in the present case are substantially the same as in *Page 299 the former one as set out in that opinion, 253 Ky. 498, 69 S.W.2d 1062, 1064, and it is not necessary to repeat them in this opinion. The case was reversed on the former appeal because of erroneous instructions, and in that opinion the court indicated the proper instruction...
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Affirming. Richard H. Ratliff of Shelbiana, Pike county, Ky., died testate in 1928, leaving surviving him Orpha Ratliff, his widow, Rebecca Morris and Mattie Fiddler, his *Page 241 daughters, and W.E. Yost, a grandson and only child of Polly Yost, a predeceased daughter. By the provisions of this will, testator devised all of his estate "of every kind and character," absolutely in fee simple as f...
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On March 16, 1934, an information was filed in the Circuit Court of Morgan County, Missouri, charging the appellant with statutory rape, in that on or before the ____ day of October, 1929, he carnally knew a female child under the age of sixteen years. On appellant's application for a change of venue, the cause was sent to the Circuit Court of Benton County, where the appellant was tried, *Page 71...
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Plaintiff is the widow of John Jensen and seeks to contest his will. They had no children. On May 25, 1931, there was admitted to probate said will, by the terms of which plaintiff and defendant were each given one-half of his real and personal property. On said day plaintiff filed, in the circuit court, a petition in which it was alleged "that she was the wife of John Jensen, deceased, and is his...
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The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. Tipton and Leedy, JJ., concur; Ellison, J., concurs in result. *Page 724 ...
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Appeal from the judgment of the Circuit Court of Caldwell County awarding plaintiff $14,000 damages for personal injuries. Plaintiff, an employee of defendant Chicago, Rock Island and Pacific Railway Company, was injured at Dodge City, Kansas, while in the discharge of his duties as a brakeman, incident to the transportation of freight in interstate commerce. *Page 484 On the evening of February ...
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We issued our writ of certiorari to review the judgment of the St. Louis Court of Appeals in the case of Charles R. Moss v. Metropolitan Life Insurance Company. The opinion in that case is reported in 84 S.W.2d 395, where a complete statement of the facts in the case may be found. [1] The respondent, a former employee of the St. Joseph Lead Company sued to obtain from the relator benefits under th...
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This is an appeal from a judgment of the Circuit Court of Cole County, Missouri, approving an order of the Public Service Commission. The controversy, which the relator, St. Paul Kansas City Short Line Railroad Company, sought to have the commission adjust, was the apportionment of the cost of the construction of an underpass in the separation of a grade crossing of a county road in Caldwell Coun...
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This is an appeal from a judgment of the Circuit Court of Cole County, Missouri, approving an order of the Public Service Commission. The controversy, which the relator, St. Paul & Kansas City Short Line Railroad Company, sought to have .the commission adjust, was the apportionment of the cost of the construction of an underpass in the separation of a grade crossing of a county road in Caldwell Co...
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Appellant was convicted in the Circuit Court of the City of St. Louis, Missouri, on a charge of robbery in the first degree and received a sentence of ten years' imprisonment in the penitentiary. Being unsuccessful in obtaining a new trial he *Page 746 has appealed. The evidence disclosed that on the 25th day of November, 1934, two negroes entered a pawn shop located at 2717 Franklin Avenue, St. ...
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Appeal from an order of the Circuit Court of Buchanan County sustaining a motion for new trial. About six A.M. on February 27, 1932, William Scudder was driving east on what is known as Lake Road near St. Joseph, Missouri, when he was struck by an engine operated by the defendant. This action arises from the injuries he there received. Lake Road ran east and west and the defendant's tracks north a...
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Habeas corpus. The sheriff of Madison County, in writing and upon oath, made a complaint to a justice of the peace of said county in which he charged that, in said county, petitioner established a lottery known as "bank night," and that he also aided and assisted in establishing a lottery in said county. On a warrant issued by the justice, the sheriff arrested petitioner and holds him in custody t...
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Max O. Bagby, a minor, obtained a judgment in the sum of $20,000 against Kansas City, Missouri, a Municipal Corporation. From this judgment the city appealed. Respondent was injured while he and other boys were playing on the side of a rock cliff in Spring Valley Park, which park was maintained by the city. A rock, weighing about one hundred and fifty pounds, became loosened and rolled down the cl...
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Ejectment to determine title to a strip of land in the city of Eldon. Judgment for plaintiffs and defendants appealed. Defendants do not have title to the strip but contend that plaintiffs are also without title and for that reason should not recover in this action. The facts follow: The right of way of defendant Chicago, Rock Island Pacific Railway runs northwest and southeast through the city. ...
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Plaintiffs sue in ejectment and for partition of one hundred and twenty-seven acres of real estate situate in Cape Girardeau County, Missouri. The case is here on cross-appeals after unsuccessful motions of the parties plaintiffs and defendant for new trial and in arrest of judgment. John G. Keller owned the real estate in fee, and, with his wife, on February 23, 1887, by warranty deed in usual fo...
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After dark, about eight-thirty, in the evening of August 28, 1931, Goah S. Barnes came to his immediate death in a collision that occurred between an automobile which he was driving and a passenger train operated by defendant railway company on a public crossing at the north edge of Gillmore, a town of some 150 inhabitants in Crittendon County, Arkansas. His surviving widow and minor children brou...
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Respondent, William Fleischaker, in case number 33788, filed a bill in equity in the Circuit Court of Jasper County, Missouri, in which he asked the court to construe the terms of the last will and testament of Isadore Fleischaker. The defendants in that suit were the five children, devisees, and only heirs of Isadore Fleischaker. William Fleischaker, the plaintiff, a brother of Isadore, was named...
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This is an action brought to contest the will of William Frank Shelton, Jr., who died December 22, 1929, leaving surviving him three minor children, plaintiffs, and a widow, Ruby Shelton, who, having refused to join as plaintiff, was named as a nominal defendant. It is agreed that Ruby Shelton, though named as a defendant, joined in the trial with the plaintiffs and is to be treated as, in effect,...
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This is an original proceeding by prohibition whereby it is sought to prohibit respondent, as judge of the Circuit Court of St. Clair County from taking further action in a certain cause wherein Pricer's Cash Market is plaintiff and relator herein are defendants. The facts necessary to an understanding of the points involved are substantially as follows: Pricer's Cash Market is a general grocery s...
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This case originated in the Probate Court of Holt County. The administrator of an estate, having been authorized by *Page 507 order of that court to sell real estate at private sale in order to pay debts, filed his report of sale on February 1, 1933. The probate court made an order approving the sale on February 11, 1933, and the administrator on that day signed, acknowledged, and delivered a dee...
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Mrs. S.S. Orlann instituted suit against W.W. Barrett for the recovery of damages for fraud and deceit alleged to have been perpetrated in a transaction involving the sale and purchase of a leasehold estate. Thereafter, Victor Laederich, Marie Laederich, his wife, and A.L. Morgan were joined as parties defendant. Plaintiff, at the beginning of the trial, dismissed as to defendant Barrett. The cour...
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The petition for rehearing presents the propositions, first, that defendants McInturff, sheriff, Erwin, county judge, Chandler, county court clerk, and Grayson, District Attorney General, were made parties solely by virtue of their official position, and, having no justiciable interest, there is a total lack of jurisdiction upon which to rest a declaratory decree; and, that being true, they insist...
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Anna Sparks fell and sustained personal injuries while descending a flight of stairs in a department store owned and operated by King's, Inc. She thereafter instituted this suit, by the declaration averring that defendant negligently and carelessly allowed the steps to remain in a wet and slippery condition after being washed during the hours plaintiff and the public were invited to use the same. ...
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The Guarantee Fund Life Company, hereinafter referred to as the company, issued a $2,000 insurance policy in 1917 on the life of Jonathan Dabbs in which his wife was named as the beneficiary. This policy was kept in force until 1929 when, on the application of the insured, it was exchanged for another, in which his wife was also named as beneficiary. This policy was numbered 718,722. The annual pr...
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The appellant was indicted for the crime of rape, convicted for carnal abuse and sentenced to imprisonment in the State penitentiary for ten years. No bill of exceptions was prepared and filed, and on appeal the sole question we are asked to review is the alleged error of the trial court in refusing to set aside the verdict of the jury and grant the appellant a new trial. The motion for a new tria...
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Appellant brought two suits in the circuit court of Jackson County against appellees, one of them to recover $499.19 and one for $1.50, alleging as the basis of the suits that the treasurer of said county cashed warrants out of the general revenue fund of the county for the amounts, which warrants were void because issued in excess of the revenues for the years to which they were chargeable, in vi...
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The facts in this case are not in dispute, most of them being stipulated. On March 2, 1929, E. T. Dyer, deceased husband of appellee, contracted with appellant to finance him to make a crop during said year to the extent of $2,000. On said date he executed and delivered his note to appellant for said sum, due November 1, 1929, and secured by a mortgage on certain chattels and all crops to be grown...
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This suit filed by appellant Neal, as a citizen and taxpayer of the city of Morrilton, was brought to enjoin the city of Morrilton and its officers from making sale and delivery to the United States Government of bonds issued for the purpose of procuring a municipal hospital in said city. The appellant contends that ordinance *Page 451 No. 400, passed by the council of the city of Morrilton, is v...
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This is a suit by the beneficiaries to recover the face value of a disability and life insurance policy issued by appellant to Abba R. Freeman on March 19, 1929, upon which the insured paid the initial yearly premium of $68.78, but never paid any subsequent payment during his lifetime. He died in 1932 with tuberculosis, *Page 475 which developed in December, 1929, at which time he became totally ...
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This suit was one to quiet title to a piece of real property situated in Saline County, which real property was at one time owned by George Elrod. George Elrod was the father of John J. Elrod and George Milton Elrod. The appellants, who were plaintiffs in the trial court, are the children of John J. Elrod, and appellees are children of George Milton Elrod. All of them claim title to the said prope...
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This action was instituted by appellee, K. Coffelt, against appellant, General Exchange Insurance Corporation, in the Saline County Circuit Court, or damages to an automobile alleged to have been covered *Page 469 by an indemnity contract of insurance. The defense interposed to the complaint was that the contract of indemnity had been canceled prior to the accident and consequent damages to the a...
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R. L. Saxon owned a factory site with buildings and machinery thereon which he mortgaged to the Bankers Trust Company of Little Rock on June *Page 455 1, 1926, to secure a debt of $35,000. The trust company filed suit to foreclose the mortgage on May 22, 1928, and on the same date filed the statutory lis pendens lien. A decree of foreclosure was rendered June 19, 1929, pursuant to which the mortg...
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This appeal grows out of the opinion in the recent case of Johnson, v. Donham, 191 Ark. 192,84 S.W.2d 374. Johnson, the appellant in that case, brought suit in the Pulaski Chancery Court as a citizen and taxpayer, to restrain the expenditures of the sum of $2,500, which the quorum court of Pulaski County had appropriated to purchase a law library for the office of the prosecuting attorney of the d...
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The defendant in error, Glenn W. Musser, who will be referred to herein as plaintiff, brought this action in the District Court of Tarrant County against George H. Sheppard, in his capacity as Comptroller of Public Accounts of the State of Texas, and certain of his deputies, and against the District *Page 195 Attorney of Tarrant County. These parties will be designated herein as defendants. The p...
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Relator, Walter Britton, was found guilty of contempt of the court for refusing to pay certain rents to the receiver appointed by the District Court for the 101st Judicial District of Dallas, County, and a commitment was issued directing that Britton be taken into custody by the sheriff of Dallas County and held for three days, and, in addition thereto, held until he paid a fine of $100.00 and the...
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This is a suit by Domingo Allala against A. N. Tandy Sons for damages for the negligence of the latter in carrying out their contract as commission merchants. The trial was before a jury on special issues, resulting in a judgment for Tandy Sons. The Court of Civil Appeals affirmed said judgment.59 S.W.2d 205. *Page 150 The material facts, so far as need be stated, are substantially as follows: ...
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This is a boundary case and the particular question for determination is whether a tract of 15.77 acres of land lies within the bounds of, or outside of, the Theodore Slade survey in Montgomery County. On November 10, 1932, the Commissioner of the General Land Office, under the authority given him by Chapter 271, Acts Regular Session of the Forty-second Legislature, leased the tract of land in con...
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Plaintiff in error, Petroleum Casualty Company, hereinafter referred to as insurer, appealed from an award of the *Page 92 Industrial Accident Board in favor of defendant in error, William C. Webb, the claimant. The claimant filed a plea to the jurisdiction of the court alleging want of jurisdiction upon certain grounds not necessary to be stated. In his answer following the allegations that the ...
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This suit is by defendant in error, D. E. Marsden, to set aside an award of the Industrial Accident Board allowing hernia benefits under subdivision 4, section 12b of the workmens' compensation act, revised statutes, 1925. The trial court upon a jury trial rendered judgment in favor of the claimant. The Court of Civil Appeals affirmed the judgment, Chief Justice Hickman dissenting. 57 S.W.2d 900. ...
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delivered the opinion of the Commission of Appeals, Section A. The certificate of the Honorable Court of Civil Appeals could not well be condensed and is therefore set out in full. It is as follows: “Mrs. Ruby B. Wester, the designated beneficiary, joined by her husband, filed this suit on an insurance policy issued upon the life of their son, Berton Errett Wester, dated April 28, 1929. “Th...
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Conviction is for theft of a hog. Punishment was assessed at confinement in the penitentiary for two years. The animal which played the leading role in this drama was described as a “sandy-haired” sow about three years old. She was claimed by the State to have been the property of J. E. Pennington. The mother of the alleged stolen sow was a black and white spotted animal. During the summer and ...
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Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary. ' This is a prosecution had under the provisions of what is known as the Dean Law (Pen.Code 1925, art. 666 et seq., as amended). Following what has been said by us in the case of Guy Meadows v. State, 88 S.W.(2d) 481, the judgment herein will be reversed, and the prosecution ordered dismis...
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Conviction for misdemeanor theft; punishment, a fine of fifty dollars. It was charged in the indictment herein that appellant fraudulently took twenty posts of the value of twenty dollars, the property of J. J. Reason, from Reason’s possession without his consent, etc. The facts do not sustain -the proposition of ownership in Mr. Reason. Some twenty-five years or more ago a group of farmers wes...
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The conviction is for the unlawful transportation of intoxicating liquor; penalty assessed at confinement in the penitentiary for two years. Since the conviction of the appellant, the law upon which the prosecution is founded has been repealed. See Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed, and the prosecution ordered dismissed....
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Conviction for theft; punishment, two years in the penitentiary. Mr. Pratt claimed to have lost an automobile about 7 p. m. on September 17, 1934. He said he left his key in the car, and left the car about fifty yards from his house, and that about 1 o’clock that night he discovered the car was gone. No one who gave testimony ever saw Pratt’s car after he parked it near his house, as above stat...
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Conviction is for assault with intent to murder, punishment assessed at five years in the penitentiary. Appellant and J. Greenwood were neighbors. A stray dog seems to have taken up at Greenwood’s house and appellant desired Greenwood to kill it, fearing it might go mad as a result of having been bitten by a civet cat. Greenwood declined to kill the dog, but told appellant he could do so if he ...
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Conviction is for operating a motor vehicle upon a highway, appellant being at the time intoxicated; punishment assessed being a fine of fifty dollars. It is appellant’s contention that the State’s evidence fails to show that appellant was driving the vehicle in question, and also fails to establish that he was intoxicated. G. W. Turrentine operated a tourist camp and filling station on Highw...
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Conviction for misdemeanor theft; punishment, two years in the county jail. We find in the record no bills of exception. The accused requested four special charges, – one a peremptory request for an instruction to acquit; another, that the jury could only consider the case in the light of a misdemeanor theft; another, that the jury should not consider the testimony of the alleged owner of the prop...
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The appellant was tried and convicted of the offense of unlawfully possessing spirituous liquor for the purpose of sale; and his punishment was assessed at confinement in the state penitentiary for a term of one year. Pending the appeal of this case, the law (Pen.Code 1925, art. 666 et seq., as amended) under which this conviction was had has been repealed. See Acts of the 44th Legislature, 2d Cal...
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This is an appeal from an order of the district judge of Delta County made in vacation, in which the application of relator for discharge or relief by way of habeas corpus was denied. The order denying the relief sought by relator shows that the proceedings were had during vacation. The transcript is certified by the clerk and not the *Page 82 judge as required by Art. 857, C. C. P., which provid...
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The appellant was tried and convicted of the offense of theft of property over the value of fifty dollars, and his punishment was assessed at confinement in the state penitentiary for a term of two years. The only matter presented for review under the record is the sufficiency of the evidence to support the conviction, and the sufficiency thereof depends upon whether there is sufficient evidence t...
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Conviction is for driving an automobile upon the public highway while appellant was intoxicated; punishment assessed was a fine of $100, confinement in the county jail for sixty days, and a prohibition against appellant from driving any motor vehicle on the highway for ninety days. The State introduced a number of witnesses who testified that appellant was drunk at the time of an accident, which c...
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The offense is the unlawful sale of intoxicating liquor; penalty assessed at confinement in the penitentiary for two years. Since the conviction of the appellant, the law (Pen.Code 1925, art. 666 et seq., as amended) upon which the prosecution is founded has been repealed (Vernon’s Ann. P.C. art. 666—49). See Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed and the prosecut...
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Appellant R. L. Bowyer is surety on the appearance bond of Lee Frederick. He was served with scire facias, and failed to appear, and final judgment by default was entered. The appearance bond was executed July 30, 1934, before a justice of the peace sitting as an examining court. It required Frederick to make his personal appearance before the district court of Brown County on the 29th of October,...
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The appellant was tried and convicted of the offense of burglary and his punishment was assessed at confinement in the state penitentiary for a term of three years. The record shows that on the night of May 4, 1934, someone entered the cafe of J. D. Lucas situated in Kerrville and *Page 95 took therefrom two slot machines, money, and cigarettes. The entrance to the cafe was effected by cutting a ...
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Conviction for assault to murder; punishment, two years in the penitentiary. Appellant and the man at whom the State claims he shot were both negroes. Appellant had been living for a good many years with a woman by whom he had a child. The State claims that sometime before this trouble appellant met the injured party and asked him if he was going with said woman, and when the injured party said he...
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The conviction is for the theft of a mule; penalty assessed at confinement in the penitentiary for three years. The indictment appears regular and properly presented. The record is before us without statement of facts or bills of exception. No error having been perceived or pointed out, the judgment is affirmed....
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The appellant was tried and convicted of the offense of failing to stop and render aid to a person whom he had struck with an automobile, and his punishment was assessed at confinement in the state penitentiary for a term of three years. The record shows that H. H. Streeter, an employee of the Houston Electric Company in the city of Houston while engaged in grinding the corrugation off of the rail...
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Appeal from a final judgment, (1) setting aside an order of the Railroad Commission refusing appellees an application for a contract carrier permit to operate two trucks on certain designated state highways; and (2) perpetually enjoining the commission and its agents from interfering with appellees in the operation of such trucks as such contract carriers. Appellees, who held a Class B permit unde...
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Appeal from a judgment of dismissal after sustaining a plea in abatement on the ground of another suit pending between the same parties and involving the same subject-matter. The suit was by the North: Texas (appellant) against Morten and the Railroad Commission (appellees) to set aside certain orders of the commission, granting to Morten certificates of convenience and necessity to operate bus li...
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Appeal is by the Railroad Commission from a temporary injunction granted against it upon the application of appellee. The following background for the injunction appears: The Railroad Commission had granted to one W. Morten a motorbus permit of public convenience and necessity to operate over highways 114 and 2, between Dallas and Decatur. By separate order it had also granted to Morten a permit t...
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Appellant issued a fire insurance policy to appellee in the sum of $1,500 on his household goods, etc., situated in a residence not then or thereafter owned by appellee. Ap-pellee brought suit against appellant on said policy, alleging the destruction of said personal property by fire, and the nonexistence of any exceptions from liability contained in the policy. Among the exceptions contained the...
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Appellee sued upon a promissory note, payable to it, executed by appellant, for the principal sum of $4)000. It appears that appellee corporation, Southwest Co., Inc., and Southwest Security Company, a Nevada corporation, and Lloyds Southwest Insurers, though separate legal entities, were operated or controlled by the same persons, had common offices and telephones, and, for all practical purposes...
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This suit was brought by Mrs. Elsie Keuper, joined pro forma by her husband, as the owner and holder of two series of vendor's lien notes, for debt and foreclosure, against Mrs. Caroline Seydler, individually and as independent executrix of, and sole devisee under, the will of Rudolph H. Seydler, deceased, who had, during his lifetime, executed one series of said notes, and had assumed the payment...
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This is a suit by R. L. Durham against the Wichita Falls Southern Railroad Company for damages accruing to him by reason of the fraud of the defendant in preventing him from instituting and maintaining his suit (within the time prescribed by the Federal Employers' Liability Act,45 U.S.C.A. § 51 et seq.) for damages resulting from an injury sustained by him on March 30, 1927, while in the employme...
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This is an action of quo warranto brought by the state of Texas by Julian La Crosse, District Attorney, on the relation of L. D. Brauer and others, against the city of Del Rio and officials thereof, for the primary purpose of testing the validity or effectiveness of an ordinance of said city passed May 8, 1934, fixing the boundary limits of said city so as to be co-extensive with the boundaries de...
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Appellants, J. B. Graves and wife, Sallie Graves, instituted this suit in trespass to try title against appellee, Lorene Moon, to recover an undivided half interest in a house and lot situated in the city of Gatesville and known as the Bennett Hotel property. Appellants alleged that appellee owned the other undivided half interest in said property, that the same was incapable of partition in kind,...
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This is a rule 37 case, which arose as follows: Betty Doby and others owned jointly a 104-acre tract of land in Upshur county, and in January, 1931, leased it to Frank Foster for oil and gas development. In February, 1931, Foster assigned the north 20 acres of the 104-acre tract to one Olvey, who immediately assigned same to appellant J. C. Falvey. About the same time Foster assigned the east 41 a...
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On February 19, 1935, Edward A. Jack,son filed with the Railroad Commission his application, under the Texas Motor Carrier Act (Acts 1927, c. 270, p. 399, as amended, Vernon’s Ann.Civ.St. art. 911a), for a certificate of convenience and necessity to operate a motorbus service wholly interstate, from the New Mexico line over Texas highways, via El Paso, Abilene, and Fort Worth to Dallas, Tex. After...
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This is a suit to recover damages brought by D. A. Lewis against Miss Anna Maria Fernandez, her mother, Mrs. S.E. Bayless, and stepfather, S.E. Bayless. Mrs. Bayless and husband married subsequent to June 2, 1934. The plaintiff alleged that on the night of June 2, 1934, he was driving his automobile on the highway in a southeasterly direction going from San Benito to Brownsville when it collided w...
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By this suit J. D. McEwen sought recovery of damages from the Texas Pacific Railway Company for personal injuries to his wife, alleged to have been sustained by reason of the negligence of the defendant, through its employee, in assisting her to alight from a passenger train at Abilene, Tex. Special issues were submitted to a jury upon which was returned a verdict finding that Mrs. McEwen was a p...
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Appellant filed suit against appellees, asking for judgment on a note, interest thereon, and attorney's fees, and for foreclosure of its lien against appellees and others. The answer of appellees was that the contract sued on was usurious, and asked for an abatement of the principal in the amount of the interest payments. *Page 312 The judgment was in accordance with appellees' prayer. The note s...
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The bank sued Oppenheim and wife upon three promissory notes and to foreclose chattel mortgages upon jewelry severally pledged to secure the notes. In addition to other pleas, not involved in the appeal, Oppenheim set up a cross-action predicated upon a conversion of the jewelry pledged to secure the third note; consisting of a lady's diamond ring, and a lady's diamond-studded brooch pin. In a tri...
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The Alamo National Bank maintains, in the basement of the banking building owned by it, a safety box department. A stairway six feet wide leads to the floor of the basement. The steps were of Traventine, a quarried stone imported from Italy, and being a species of marble. Mrs. Mathilde L. Hazlitt rented one of the boxes. On February 10, 1933, she undertook to descend the stairway for the purpose o...
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Appellant, as assignee of Jagoe (Jagoe Construction Company, a foreign corporation), sued appellee upon certain paving certificates, issued by the city of Brownwood to Jagoe in consideration of street paving which Jagoe had done under contract with the city. Appellee had also executed mechanics' liens to secure the certificates. The trial court sustained a plea in abatement, predicated upon the fo...
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The appellant, W. B. Currey, filed this suit to recover damages on account of injuries alleged to have been sustained by his wife as the result of falling down a stairway of a building owned by the appellee, Mrs. Krause, and used as an office building in the town of New Braunfels. The two grounds of negligence upon which recovery was sought are that appellee was negligent in permitting the edge of...
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The appellee, Mrs. Ruth Anderson, a widow, instituted this suit in the district court of Brown county, to recover damages for the death of her son, Robert Otto Anderson, which she claimed was occasioned by the negligence of the agents, servants, and employees of appellant, the city of Brownwood, a municipal corporation. She alleged the city owned and operated, in improving and maintaining its stre...
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Affirming. This is the second presentation to us of this action. See Hauck et ux. v. Lillick et ux., 254 Ky. 6, 70 S.W.2d 958,960. The facts now contained in the record, except supplementary testimony to which we shall hereafter refer, are set out in our opinion on the first appeal. It is unnecessary to restate them. The issues then were and now are whether the writing involved was an option or an...
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Affirming. The petition herein asked "for a declaratory judgment construing sections 4151-2 and 4153, Kentucky Statutes." Section 639a-1, Civil Code of Practice, provides that "in any action * * * wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of right...
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Affirming. Pikeville, a city of the fourth class, by ordinances duly enacted, authorized the construction of certain streets in the city, including Julius avenue. The Campbell Construction Company was the successful bidder for the work, and it completed the construction of the streets in the autumn of 1925. T.J. Williamson owned a number of lots fronting on Julius avenue, and they were duly assess...
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Reversing. Relying upon the fact that he was the owner of certain warrants issued by the city of Prestonsburg between August 30, 1930, and October 30, 1931, to E.P. Hill for his services as city clerk, and to A.C. Daniels for his services as policeman, which the city had refused to pay, and claiming that the city was paying warrants subsequent to his warrants, J.H. Nunnery brought this suit agains...
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Reversing. The record discloses such intimate relation and common purpose of the parties for such period of time that it can scarcely be said that this proceeding is embraced by the term "lawsuit." This term is defined and generally recognized as "a suit at law or in equity; an action or a proceeding in a civil court; a process in law instituted by one party to compel another to do him justice." S...
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Affirming. William M. Stringer, a resident of Pulaski county, died testate in 1927 and left surviving three children, Dorothy, Willard, and Kenneth, his wife having previously died. He provided in his will that Kassiah Beasley take his three children and that she have the rent from his two farms to support them, and if the rent was not sufficient for that purpose, she was to have pay out of any mo...
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Affirming. Indicted for the murder of Tom Byrd, Everett Murphy has been found guilty and his punishment fixed at life imprisonment. By this appeal he is seeking a reversal of the judgment, the grounds assigned and argued for reversal in substance being: (1) That the instructions given were erroneous and prejudicial; (2) that members of the jury were permitted to separate after being placed in the ...
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Affirming in part and reversing in part. The appellants, Kenneth Gilliam and Eva Gilliam, and one Park Bicknell were tried under an indictment charging them with knowingly receiving stolen property. At the trial the prosecution was dismissed as to Bicknell because of insufficient evidence against him, but appellants were found guilty, and each was sentenced to a term of four years in the penitenti...
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Reversing. This is a second visit of this case to this court. See Livingston County et al. v. Dunn et al., 244 Ky. 460,51 S.W.2d 450, 451. In our former opinion we said: "Without attempting to analyze or determine the correctness of the report of the accountant employed by Dunn, or of those employed by the county, or the statement of the county clerk, it will suffice to say that neither of them ...
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Affirming. On July 3, 1922, V.M. Acree and wife executed and delivered to the Louisville Joint Stock Land Bank a promissory note for $15,000, payable in 66 semiannual payments of $525 each, interest included, on April 1st, and October 1st of each year, until the year 1955, and secured the note by a mortgage on a 308-acre tract of land in Christian county. Under the mortgage, the mortgagee had the ...
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Reversing. In May, 1918, the Commonwealth Life Insurance Company, hereinafter called the defendant, issued a policy of insurance on the life of Charles M. Woods, in the sum of $200, and Blanche Woods, hereinafter called the plaintiff, the stepmother of Charles M. Woods, was named beneficiary therein. In August, 1932, the plaintiff, as beneficiary of the policy, brought suit in the quarterly court ...
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Affirming. The city of Hazard appeals from a judgment awarding Lucy Orem Adkins $750 damages for injury to her property, caused by the construction of a bridge above the level of the street adjoining the property. The facts are: The corporate limits of Hazard, a city of the fourth class, are on both sides of the north of the Kentucky river. State highway No. 15, leading from Winchester to Whitesbu...
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Affirming. Harlan Ballard appeals from a judgment convicting him of chicken stealing, and fixing his punishment at two years' imprisonment. The grounds on which a reversal is asked are that the market value of the chickens was not properly proven, and that the court erred in not giving an instruction on petit larceny. Attention is called to the fact that appellant had only four of the chickens, an...
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Affirming. Horace Carpenter has appealed from a judgment *Page 409 imposing upon him twenty-one years in the penitentiary for the slaying of Willard Monhollon. The Facts. This homicide occurred about 2:30 p. m. Sunday, October 7, 1934, under circumstances that are sharply disputed. If those detailed in the evidence for the commonwealth be true, the accused is to be ...
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Reversing. In 1929 the Equitable Life Assurance Society wrote two group policies for the Consolidation Coal *Page 405 Company. Policy No. 3028 provided for the payment of a lump sum (in this case $1,250) upon the death of the insured employee, or, if the employee became totally and permanently disabled, it provided for the payment of twenty-five monthly installments of $51.39 each. By group polic...
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Reversing. In 1934 the state highway commission undertook to and did concrete the public road between London and Barbourville, Ky., along the general route of a previously established highway, which the brief of counsel says was established by a private act of an early Kentucky Legislature enacted in 1794, but which was not introduced at the trial of this case, nor have we been able to locate it. ...
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Reversing. The appellee and plaintiff below, Monte Rea Duvall, is and was at the times mentioned herein the wife of Joe Duvall. Their home was in Fort Thomas, Ky., and they are the parents of some small children. She was reared in or in the vicinity of Stearns, Ky., a mining town in McCreary county, but left there when she was about 17 years of age. The appellant and defendant below, Cincinnati, N...
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Affirming. Henry B. Porter died in September, 1882, leaving a will by which he bequeathed to his wife all of his property during her life; at her death all the property to be sold at public sale and out of the proceeds one-half plus $600 to go in fee to his daughter, the other one-half to his son Roby S., "subject to the following restrictions and limitations," these being incorporated in the thir...
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Affirming. In this action brought in the Knott circuit court for partition of certain lands of the intestate, C.C. Horton, appellants' motion to vacate certain judgments therein rendered, so ordering, having been overruled, this appeal is prosecuted. It is disclosed by the record that C.C. Horton died in August, 1924, intestate, domiciled in Floyd county, Ky., leaving surviving as his heirs at law...
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*401 Opinion op the Court by Affirming. Dillard Saltsman appeals from a five-year sentence for manslaughter. It is first insisted that the court erred in not instructing the jury to find appellant not guilty on the ground of self-defense. This contention requires a review of the evidence. The homicide occurred Sunday night, December 9, 1934. Eddie Carroll, Coy Meredith, and Hubert Carroll...
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Appellant sued appellee for the damage done to his car as a result of a collision between his and appellee’s cars, at the intersection of Quapaw and Violet streets, in Hot Springs, on August 31, 1935. At the conclusion of the evidence for appellant the court instructed a verdict for appellee. This appeal challenges the correctness of the court’s action in this regard. We agree with the trial co...
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Appellee Maness brought this action against appellant to cancel certain promissory notes and for the release of certain collateral executed and delivered by the former to the latter. He alleged that he became indebted to appellant in the sum of $100 for borrowed money on or about January 1, 1935, and that appellant required him to execute six notes of $20 each due one each month, and one note for ...
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Appellant, Jesse Sailer, was convicted in the circuit court of Craighead County for the crime of permitting his stock to range at large in violation of a local stock law, and sentence was imposed as authorized by act 206 of 1925 from which this appeal comes. For trial purposes in the circuit court it was stipulated by counsel that appellant was guilty of the crime charged, provided there existed a...
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On February 18, 1924, Al Simco and wife, Lena Simco, executed and delivered to their son, Tom Simco, a deed conveying the property therein described to said Tom Simco. The undisputed facts show that the deed was executed and delivered to Tom Simco and that he immediately went into possession of the land *Page 519 conveyed. Some time thereafter he delivered the deed to his mother for safekeeping. ...
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Kochtitzky Johnson, Inc., a corporation, entered into a contract with the Federal Government for *Page 524 the construction of a levee on the Mississippi River. The construction bond, required in such contracts, was executed by the New Amsterdam Casualty Company. The entire contract which was completed in June, 1933, was sublet by appellant to Ward-Hayes Construction Company, a partnership. The ...
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Appellee, J. A. Affolter, and a number of others engaged in the retail sale of whole milk in the vicinity of Little Rock instituted this action in the Pulaski Chancery Court against appellant, Earl R. Wiseman, Commissioner of Revenues for the State of Arkansas, the object of which was to permanently enjoin and restrain the collection of sales tax upon retail sales of whole milk. Upon trial, after ...
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Special School District No. 91 of Lonoke County, through the president and secretary of its board of directors, issued a warrant for $300 payable to the order of W. B. Graham, the president of the school board, in payment of three acres of ground purchased for the use of the colored school in that district. The school district brought suit to cancel the school warrant, and it was held in that c...
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Appellee obtained a judgment against appellant in the municipal court of Fort Smith on April 12, 1935. An affidavit for appeal was filed with the clerk of said court and the fee for making the transcript was paid April 20, 1935. The clerk of said court promised to file the transcript with the circuit clerk, but failed to do so within thirty days. The appeal was perfected May 31, more than thirty d...
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This is a suit brought by appellant against appellee in the circuit court of Mississippi County, Osceola District, on June 28, 1934, for the purpose of condemning 14.45 acres of land contiguous to its right-of-way to enable it to strengthen and enlarge its levee, under authority of §§ 3933 to 3942, inclusive, of Crawford & Moses’ Digest. There is no' question raised as. to the legality of the p...
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Charles H. Reed, appellant, sued the appellees to recover damages for personal injuries alleged to have been received by him on August 23, 1934, at Batesville, Arkansas. He alleges that while he was waiting for the arrival of a passenger train for which he had bought a ticket to Bowie, Texas, a freight train passed the passenger shed near to which he was standing, and that there was hanging or swi...
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Plaintiffs in error appeal from a conviction of voluntary manslaughter, with a prison sentence of two years, in the killing of Jess Anderson by stabbing with a pocketknife. The Holts are cousins, young men of 23 and 24 years, respectively. Elvin Holt says that it was he who used the knife, and there is no doubt on the record that this is so; and we find no evidence that Hoyte Holt was armed at all...
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This cause is before the court on the appeal of complainant, J.W. Gallien, from the decree of the chancellor dismissing his bill on demurrer. The purpose of the bill was to enjoin the members of the county board of election commissioners of Wayne county from holding an election to fill the office of county superintendent of public instruction of Wayne county, under chapter 831 of the Private Acts ...
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James H. Swain was accidentally killed while riding in an automobile as a guest of John Inman. The automobile skidded and plunged through the railing of the Church street viaduct, in the city of Nashville, to the railroad yard 30 feet below. The accident took place on November 12, 1933, at about 3:30 A.M., at a point on the viaduct where the roadway somewhat narrows. Street car tracks cross the vi...
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In this cause the affairs of the Independent Life Insurance Company of America are being administered by a receiver. This appeal is from a decree of the chancellor upon an intervening petition of Mrs. Vervie Brazil. The petition was filed to recover on an accident insurance policy issued upon the life of petitioner's child, aged six years, who was killed by a fall from an automobile. The chancello...
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The complainant is a domestic corporation organized to carry on a warehousing, storage, and freighting business. Its domicile is at Memphis. In 1924 it leased all its buildings, machinery, tracks, and docks to the St. Louis-San Francisco Railway Company for an annual rental that produces a net income. The commissioner of finance and taxation assessed against complainant the excise tax imposed by l...
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delivered the opinion of the Court. In this canse the estate of Lon Frank, deceased, is being wound up in the chancery court of Davidson county. His widow filed a petition in the cause, challenging the authority of the executor, and insisting that the will under which the executor was acting had been revoked for reasons hereinafter stated. The chancellor dismissed the petition and permitted an ...
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This suit was brought by Mrs. Jack Beene to recover damages for injuries to her person and to her automobile growing out of a collision between that vehicle and an automobile belonging to H.A. Ringwald. There was a judgment for the plaintiff below for $1,750 for personal injuries and for $125 for injuries to her car. The Court of Appeals was of opinion that defendant's motion for a directed verdic...
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These two suits tried together were brought by Maude Butler, a child of twelve years, and her father, Berry Butler, against E.A. Rogers and Hamilton county to recover damages on account of injuries to the little girl sustained in a fall from a school bus. There was a judgment for $3,500 in favor of the child and a judgment for $1,000 in favor of her father against both defendants. These judgments ...
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This is an appeal by the receiver of an insolvent bank, in process of liquidation in the chancery court, from a decree awarding to a group of claimants of trust funds placed with the bank in its capacity as guardian, executor, etc., priority over general depositors and other creditors. These trust funds aggregated some $37,000. The record indicates that, if and when these priorities are discharged...
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This case presents the question of the legality and right to enforcement of a covenant, contained in a mortgage, for the partial release of land when sold in lots or parcels. The covenant, to be hereinafter copied, provides that the mortgagee will release lots or parcels when $200 per acre of the purchase price is paid to him upon his debt. The bill alleges that the mortgagors sold and conveyed a ...
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This suit was filed by Charles F. Rogers to specifically perform a contract entered into between Rogers and the defendant J.B. Roop, for the exchange of certain real estate in the city of Knoxville. There was no misunderstanding in reference to the consideration passing between the parties. The defendant declined to carry out the contract solely upon the ground that the complainant had not complie...
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In the trial court defendant in error recovered judgment against plaintiff in error for $1500 damages for breach of contract to convey certain residence lots in the City of San Antonio, *Page 153 upon which was situated a dwelling. The judgment was affirmed by the Court of Civil Appeals. 58 S.W.2d 843. The contract was in writing and set out the conditions of the sale and the consideration to be ...
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Defendant in error Mrs. Lillian Valentino, as guardian of the person and estate of Annie Lee Johnson, a minor, and for the use and benefit of the minor, sued plaintiff in error in three alternative counts: first, for debt due the minor by virtue of a contract which defendant in error made with plaintiff in error for the minor's benefit; second, for the recovery of a sum of money belonging to the m...
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This suit was instituted by plaintiff in error, Ben H. Sharpe, against defendant in error, Landowners Oil Association, a corporation, to cancel an oil, gas and mineral lease on lands in Lamar County. A judgment in favor of plaintiff in error in *Page 148 the trial court was reversed and rendered by the Court of Civil Appeals. 61 S.W.2d 155. The lease in question was executed by E. R. Stubblefield...
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Defendant in error, Anselmo Duran, who will be referred to herein as plaintiff, brought this suit in the County Court of Dallas County, at Law No. 2, against plaintiff in error, Hermila T. Vda Olloqui, referred to herein as defendant. Plaintiff sued for the sum of $266.31, balance on a note, with interest and *Page 158 attorney's fee, and to foreclose a mortgage lien on certain personal property....
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The Powells, (husband and wife), operated the Angelus Hotel in San Antonio as lessees under a lease expiring February 1, 1931. They owned the furniture and furnishings used in the operation of the hotel. On January 29, 1930, they sold their lease, good will, furniture and furnishings to the Rockows, (husband and wife), for a total consideration of $4000, $1500 in cash and the balance in a note to ...
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The appellant was tried and convicted of the offense of murder with malice aforethought, and his punishment was assessed at confinement in the state penitentiary for a term of ten years. The testimony shows that on or about the 19th day of May, 1934, the appellant, his wife, and deceased met at the home of R. D. Singleton. Appellant's purpose in going to Singleton's home was to get his hair cut as...
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Conviction was for the sale of intoxicating liquor, punishment assessed at one year in the penitentiary. Since this conviction, the law upon which prosecution was predicated has been repealed. See Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed and the prosecution ordered dismissed....
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The offense is conspiracy to commit theft of property over the value of fifty dollars; the punishment, confinement in the penitentiary for two years. It was charged in the indictment in substance that appellant entered into a conspiracy with F. E. Hill to steal $92.30 from the State National Bank of Corsicana. On May 9, 1935, appellant deposited $51.00 in money to his credit in the State National ...
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The offense is robbery; penalty assessed at confinement in the penitentiary for life. Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed....
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The appellant was tried and convicted of the offense of murder and his punishment was assessed at death. On or about the 27th day of October, A.D. 1934, while the appellant, Clarence Brown, W. J. Yarborough and a few other persons were confined in the Dickens County jail, the appellant and Clarence Brown shot and killed the sheriff and made their escape in the sheriff's car. They were later arrest...
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Conviction is for burglary of a railroad car, punishment assessed being two years in the penitentiary. The burglary occurred at Whitesboro in Grayson County, Texas. The car burglarized contained a shipment of eleven cases of shoes consigned to Anderson and Hodges. Eight cases of shoes were taken by the thieves. On the next day after the burglary a witness who lived near Mineral Wells noticed an au...
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Conviction for murder; punishment, four years in the penitentiary. The facts are in much conflict. The testimony for the State shows that appellant and his witnesses were going to camp and fish at night, and were joined by deceased. The party was in a wagon. They passed the house of McCain, a brother-in-law of deceased. The latter went into said house accompanied by Sam Dora, who later came out, g...
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The appellant was tried and convicted of the offense of murder with malice and his punishment was assessed at confinement in the state penitentiary for a term of twelve years. The record shows that on Friday night preceding the homicide on Monday morning, someone entered the appellant's feed house and took therefrom a rifle, hams, sausage, and some bacon. An investigation of the premises disclosed...
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The offense is burglary; the punishment, confinement in the penitentiary for two years. The State's attorney before this court confesses that bill of exception No. 5 reflects reversible error. Said bill presents the following occurrence: Appellant did not testify. In argument to the jury the district attorney remarked that appellant had not offered any testimony. Appellant's counsel objected on th...
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The conviction is for the unlawful sale of intoxicating liquor; penalty assessed at confinement in the penitentiary for one year. Since the conviction of the appellant, the law upon which the prosecution is founded has been repealed. See Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. •The judgment is reversed, and the prosecution ordered dismissed....
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Conviction is for unlawful possession of a still for the manufacture of spirituous liquor ; punishment being assessed at one year in the penitentiary. Since the conviction in this case the law under which the prosecution proceeded has been repealed. See Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed and the prosecution ordered dismissed....
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Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary. *455The law creating the offense for which this appellant was convicted has been repealed. Following Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481, the judgment is reversed and the prosecution ordered dismissed....
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The appellant was tried and convicted of burglary and his punishment was assessed at confinement in the state penitentiary for a term of two years and six months. The record shows that on the 25th day of March, 1935, a box car belonging to the M. K. T. Railway Company, which was standing on one of its side tracks in the town of Whitesboro, was forcibly entered and eight cases of shoes taken there...
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The conviction is for robbery; penalty assessed at confinement in the penitentiary for ten years. Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed. ....
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The offense is robbery; penalty assessed at confinement in the penitentiary for fifty years. Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed....
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The offense is theft of turkeys; penalty assessed at confinement in the penitentiary for one year. The indictment appears regular. Appellant entered a plea of guilty to the offense *457charged and waived a jury upon the trial. The facts heard before the trial court are not brought forward for review. Nothing has been presented justifying a reversal of the judgment or requiring discussion. The judg...
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The offense is possession of whisky for the purpose of sale; the punishment, confinement in the penitentiary for one year. Pending appeal, the law under which appellant was convicted has been repealed. The judgment is reversed, and the prosecution ordered dismissed. PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and a...
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The appellant was tried and convicted of the offense of unlawfully transporting intoxicating liquor, to wit, whisky; and-his punishment was assessed at confinement in the state penitentiary for a term of one year. Pending the appeal of this case, the law (Pen.Code 1925, art. 666 et seq., as amended) under which this conviction was 'had has been repealed. See Acts of the 44th Legislature, 2d Called...
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The appellant was tried and convicted of the offense of converting and misapplying public funds, and his punishment was assessed at confinement in the state penitentiary for a term of two years. It is charged in the indictment that appellant was tax collector *Page 79 of Montague County during the year 1934; that there came into his possession during the month of August of said year by virtue of ...
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Conviction is for possessing intoxicating liquor for the purpose of sale; punishment assessed being one year in the penitentiary. Since the conviction herein the law under which the prosecution proceeded has been repealed. Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed, and the prosecution ordered dismissed....
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This day came on to be heard appellant's motion to have mandate issued without payment of costs by city, and the same having been duly considered, it appearing to the court that the former order adjudicating costs of appeal in this case against the city of Comanche is void, is hereby granted and the clerk is directed to issue the mandate as prayed for. Republic Insurance Company v. Highland Park I...
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The offense is robbery with firearms; penalty assessed at confinement in the penitentiary for six years. The indictment appears regular and properly presented. The facts heard in the trial court are not brought forward for review. No complaint of the procedure has been presented by bills of exception or otherwise. The judgment is affirmed....
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This day came on to be heard appellant’s motion to have mandate issued .without payment of costs by city, and the same having been duly considered, it appearing to the court that the former order adjudicating costs of appeal in this case against the city of Comanche is void, is hereby granted and the clerk is directed to issue the mandate as prayed for. Republic Insurance Company v. Highland Park ...
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Appellee sued appellant and J. L. Mc-Lamore, alleging that they were in the business of selling used cars and on December 5, 1933, had in their possession a certain Chevrolet automobile, 1931 model coach, and held themselves out as the owner of said car, and on said date sold same to him for the sum of $338.96, of which he paid in cash $200, and later paid the balance of $138.96; that-at the time...
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A brief statement of the facts out of which this suit arose will aid in a ready understanding of the issues involved. Appellee, Montgomery, on or about the year 1926, did business with a bank at Walnut Springs, the name of which he did not remember. In the month of October, 1926, he discovered that said bank held a note against him which he had not signed. He immediately had a conversation with on...
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On or about the 22d day of February, 1933, appellant went into the store of appellee located at 307 Water street in the city of San Antonio, Tex., and, after making a purchase, left the store on her way to join a friend across Water street. The floor of the building in which appellee's store is located is higher than the sidewalk, and, at the time here involved, there existed a corrugated concrete...
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Ernest Roy Burns and his wife sued the Texas Mutual Life Insurance Association, and alleged, in substance, that on December 30, 1927, the defendant issued and delivered to plaintiffs a mutual assessment insurance certificate in the sum of $5,000, payable to Mrs. Burns as beneficiary upon the death of Mr. Burns; and that, notwithstanding the plaintiffs had paid all dues and assessments and had full...
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The appellee, Nanes, filed this suit against the appellant to recover upon a policy of insurance issued by appellant June 1, 1934, upon the life of Margarita Nanes, his wife, alleging that she died July 12, 1934. He seeks to recover $500, the face of the policy, and interest, prays for 12 per cent. penalty and $150 attorney's fees. The appellant answered, attaching the application for insurance, a...
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Appellee bank brought this suit against appellants, Mike Debes and his wife, Vahiba Debes, to recover a personal judgment against Mike Debes upon four promissory notes, and to foreclose one deed of trust given by Mike Debes on certain real estate, and another deed of trust on certain real estate executed by Mike Debes and his wife, Vahiba Debes, and a pledge lien on certain personal property. The ...
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This statement, deemed to be substantially correct, is taken from the appellee's brief: "This is a suit to enforce an award of the Industrial Accident Board made and entered on the 5th day of October, 1932, in favor of the appellee, D. Leger, and against the appellant, Texas Reciprocal Insurance Association, in the amount of one hundred fifty (150) weeks commencing on the 31st day of May, 1932, at...
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This is an appeal from the judgment of the district court of Collin county, overruling appellant's plea of privilege and its plea of res judicata as to venue. The following are the necessary facts: Appellant, the Curtis Publishing Company, is a foreign corporation legally doing business in Texas with its principal office in Dallas county. Appellee, Mary Mitchell, is a feme sole, with her residence...
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The statement of the nature and result of the trial of the cause, as made by appellant, is clear and reflects the facts of the situation. We adopt it as follows: During the year 1926, the First National Bank of McKinney was doing a banking business in McKinney, Tex., and on April 12, 1926, Mrs. Bettie Brown, a widow, executed a note to that bank in the amount of $5,125, and on November 24, 1926...
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This is an original proceeding for writ of prohibition. Respondent Federal Crude Oil Company was appellant, and relators Yount-Lee Oil Company and B. E. Quinn were appellees, in the case of Federal Crude Oil Co. v. Yount-Lee Oil Co. et al., reviewed by this court and reported in 73 S.W.2d 969. That suit involved title to 13.8 acres of valuable producing oil land, being lots 5 and 7 of the Chisson-...
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Appellants, Glenn Coffee and. W. G. Word, as real estate brokers, sued appellee, Wiley Blair, in the district court of Dallas county for a commission on the sale by Blair of a ranch to the W. T. Waggoner Estate, of Fort Worth, Tex., asserting that they were the procuring cause of the sale. Appellee answered by appropriate pleading denying a right of recovery. The cause was tried to a jury, and the...
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Appellee, G. R. Anderson, sued appellant, Taylor-Link Oil Company, to recover the amount due on a written contract to drill an oil well, which contract was attached to and made a part of the petition and provided that appellant would pay appellee $1 per foot for drilling the well to the depth of 1,700 feet and for any additional depth at the same rate of pay; and also provided that if the well pro...
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The First Trust Joint Stock Land Bank of Chicago, doing business in the city of Dallas, Tex., has prosecuted this appeal from an order overruling its plea of privilege in a suit by 11. H. Morrison against it for a real estate commission alleged to be owing to him by the defendant for procuring a sale of 690 acres of land out of a tract of 1,510 acres situated in Tarrant county. The suit was instit...
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This appeal was filed in the Galveston Court of Civil Appeals, and transferred to our docket by orders of the Supreme Court. The record is before us without briefs by either party; therefore, the appeal is dismissed for want of prosecution. Haynes v. J. M. Radford Grocery Company, 118 Tex. 277, 14 S.W.2d 811....
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On and prior to January 3, 1931, Arthur Huey was the duly qualified and acting tax collector of Hutchinson county, Tex. The Panhandle Bank of Panhandle, Carson county, Tex., was the duly selected and acting county depository of Hutchinson county. The Borger State Bank was a state banking corporation, doing business at Borger, with A. P. Borger as its president. On the last-mentioned date Huey depo...
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This is an appeal by Mrs. Earl Ling-wiler and husband, G. W. Lingwiler, from an order of the . trial court dissolving a temporary injunction theretofore issued in their favor on an ex parte hearing enjoining F. W. Bartlett, trustee in the deed of trust hereinafter mentioned, the Federal Mortgage Company, former owner of the note secured by said deed of trust, G. S. Connor and Eloise M. Willis, in...
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On September 21, 1932, in a district court of Dallas county, Tex., F. I. Glenn, plaintiff, instituted this suit against N.W. Clark, defendant, to recover a deficiency out of a mortgage note and indebtedness, the mortgage property having been sold under the power of sale in a deed of trust and the consideration applied to the debt due, leaving a balance in the sum of $2,052.30. Clark being a nonres...
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This appeal was filed in the Galveston Court of Civil Appeals and transferred to this court by orders of the Supreme Court. By her original petition appellee, Josephine Klander, alleged that on the 26th day of June, 1933, appellant, Lone Star Mutual Life Association, issued to her husband, Henry F. Klander, a policy of insurance in the sum of $1,000 in which she was named beneficiary; that the pol...
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The parties will carry here their trial court designation. Plaintiff sued and recovered judgment against defendant upon an alleged oral contract of insurance, the nature of which sufficiently appears in the two following special issues, both answered favorably to plaintiff: "Question No. 1. Do you find from a preponderance of the testimony that on or about the 30th day of November, 1929, the witne...
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Appeal is from a judgment in favor of appellee against appellant for $384.75 on an accident policy issued by appellant to appellee, dated June 10, 1932. The appellant defended on the ground of forfeiture of said policy for nonpayment of premiums due prior to the date of the accident. By supplemental petition appellee pleaded waiver of such payment by the agent at the time he took appellee's applic...
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Judgment for damages was recovered against appellant by appellees as a result of a collision on a public highway between motor vehicles, viz., a truck driven by the agent of appellant and an automobile being driven by Sue Eanes, one of the appellees herein. The general nature of the case is for the present sufficiently illustrated by the following special issues submitted to the jury and answered ...
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At the inception of the transactions involved in this controversy, Jesus Maria Ramirez and G. A. Guerra, partners, operated a business in Starr county, under the firm name of Ramirez Guerra. Being indebted to First State Bank Trust Company of Rio Grande City, the firm, *Page 524 through Ramirez, on October 20, 1928, executed its note for $3,332.69, payable, on demand, to the bank. Shortly after...
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This suit was instituted by C. C. Hudson and five other persons seeking the issuance of a temporary injunction, and on final hearing a permanent injunction, against the San Antonio independent school district and others, restraining them from spending the proceeds derived from the sale of certain bonds, for any other purpose than the construction of a senior high school building on a site located ...
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This appeal is by writ of error, but the parties will be referred to as appellant and appellee. On the 12th day of June, 1929, appellee, Mrs. M. M. Anderson, executed a contract in writing, creating a lien against certain property owned by her in the city of Lufkin, to secure appellant for the cost of paving the street in front of her property, paving ordered by the city of Lufkin; afterwards the ...
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Defendants in error, Mrs. Lona Penn, joined pro forma by her husband, J. C. Penn, herein called appellees, brought this suit to recover the amount due on P $525 note against T. A. Houston as maker, and Mrs. S.E. Norment, deceased, having during her lifetime signed the note as surety; Mike Houston was sued as the independent executor of her estate to subject the same to the payment of this surety o...
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Appellee D. J. Hoerster, as receiver of the Bank of Fredericksburg, instituted this suit against, among others, appellants *Page 538 R. M. Lewis and his wife, Nettie A. Lewis, seeking a mandatory writ of injunction commanding appellants to vacate certain real property and to desist from further slandering appellee's title to said land and premises. Appellants were alleged to be in possession of t...
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In 1902, A. J. Barnes and wife executed and delivered to their daughter, Mrs. Ida Alderdice, the following deed: "That we A. J. Barnes and E. A. Barnes of the County of Johnson, State of Texas, for and in consideration of the sum of One Dollars, to us in hand paid by Ida Alderdice, the receipt of which is hereby acknowledged, and the further consideration of the love and affection we bear for her ...
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The appellant, William D. Morris, guardian of the estate of Faye and Dorothy Williams, minors, filed in the district court of Henderson county, Tex., an application for a writ of certiorari to the county court to revise community administration proceedings had in said court. The application was granted, bond given, citation served, and, on hearing, the district court sustained a general demurrer t...
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Opinion of the Court by Reversing. Benton Sizemore appeals from a judgment rendered upon his separate trial sentencing him to life imprisonment for the murder of Wesley McIntosh. The Facts. McIntosh was shot and instantly killed by George Sizemore, November 21, 1934. For this George Size-more, Benton Sizemore, 'Cecil Sizemore, and Charlie Noble were on March 13, 1935, by indictment, charg...
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This suit was filed by the appellee, a corporation, hereinafter referred to as the company, against appellant, McAlister, to cancel stock of the company held by McAlister of the par value of $10,000, and to recover $2,500 alleged to have been wrongfully paid by the company to McAlister as dividends on the stock. The company also sued for $2,300 alleged to have been wrongfully drawn by McAlister fo...
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B. F. Dittmar Company was a corporation engaged in the real estate mortgage business, lending money upon real estate in various counties in Texas and taking deeds of trust liens upon the properties to secure the notes evidencing the loans. The company in turn issued and sold to the public investment certificates secured by said notes and mortgage liens. These transactions were evidenced by certain...
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C. H. and Howard McDaniel, appellants, were plaintiffs below, and appellee, city of Beaumont, was defendant. By their petition, appellants undertook to plead a cause of action for "extra costs" incurred by them in the erection of a high school building for defendant under the following contract: "This agreement, made this 27th day of November, A. D. Nineteen Hundred and Twenty-Eight between McDani...
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All preliminary steps required by statute having been taken, Hess D. McNorton, employee of Morton Salt Company of Grand Saline, Tex., filed this suit against Texas Employers Insurance Association, the insurance carrier, as an appeal from the final award of the Industrial Accident Board, on a claim for compensation for accidental injuries sustained by the employee in the course of his employment. T...
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For convenience, we will refer to the parties in this case as appellant and appellee. Logan C. Roots, appellant, brought suit in the district court of Grayson county against the Brotherhood of Railroad Trainmen, appellee, on a beneficiary certificate, issued to the appellant, seeking to recover total disability because of the loss of one of his eyes. Appellee filed a plea in abatement, which was h...
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The First State Bank of Ellinger recovered a judgment for $215.15 against appellee, in his capacity as guardian of the estate of O. F. Tschiedel, non compos mentis, which judgment was certified to the probate court of Fayette county, where the estate was pending, and was duly allowed as a claim against the estate. There being no funds in the estate, appellant, as liquidator of the Ellinger Bank, a...
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Henry Brasher, Jr., and Henry Brasher, Sr., holders of a judgment against Ferd J. Rohan for the sum of $276, caused to be issued out of the county court of Fayette county a writ of garnishment against the Carnation Company of Texas, a corporation. Said corporation answered that it owed Rohan $209.46. Rohan intervened and claimed that such indebtedness to him was exempt from garnishment as current ...
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Prior to March 12, 1934, appellee, McKague, had in escrow option contracts on oil and gas leases in Reagan and Glasscock counties. He desired to sell these. On said last date he made a written contract with appellant, Moore, to perform this service, which contract provided in substance: That appellee should acquire three sections known as the Roby land by leases for a price not to exceed $1 per ac...
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This suit was filed in the district court of Montgomery county on the 24th day of October, 1934, by appellants, Joe Manning and wife, against appellees, Humble Oil Refining Company et al., to recover the title and possession of block 43, containing 5 acres of land, in the Security subdivision of the C. A. West survey in Montgomery county, and three small tracts of land adjoining block 43, tract N...
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Plaintiff sued to recover damages claimed to have been sustained by him while in the employment of defendant, due to the latter's negligence. He recovered judgment for $1,500 from which defendant appealed to the Kansas City Court of Appeals. That court first rendered a decision reversing the judgment but, on rehearing, by a decision in which only two of the three judges concurred, affirmed it. Upo...
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This is an equity suit in two counts. The first count is a suit to try and determine title to an undivided one-sixth interest in a tract of approximately 134 acres of land in Jefferson County. The second count seeks a partition of the land. The issue of title on the first count is between plaintiff and defendant Katherine Funk, the title and ownership of the other five-sixth interest in the land n...
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This suit is based upon a depositary bond. The cause was tried before the court, a jury having been waived. The trial court found the issues in favor of defendants, respondents here, and plaintiff, the town of Canton, appealed. The amount in dispute exceeds $7500, hence our appellate jurisdiction. On the 28th day of April, 1931, the Bank of Lewis County was selected as the depositary of the funds ...
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The Circuit Court of Perry County, Missouri, entered a judgment decreeing partition in two tracts of land located in that county. This appeal involves only the second tract of land consisting of 17.16 acres which belonged to John Gerstacker during his life; that the defendants, Emma Moldenhauer, Louise Kluender, and the appellant, Clara Endres, were Gerstacker's children and the respondents. Amiel...
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This is a proceeding upon an account presented to the County Court of Ozark County against said county. It was apparently appealed to the circuit court of said county, under the provisions of Sections 2093, 2094, Revised Statutes 1929, after disallowance by the county court. The circuit court found against plaintiffs and they have appealed from that judgment. [1] Respondent has not favored this co...
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Original proceeding in mandamus to compel respondent, judge of the Circuit Court of Atchison County, to proceed with an election contest pending in said court, in accordance with the statutes in such cases made and provided. Upon the filing of relator's petition for the writ, our alternative writ was issued, to which respondent made return, and the cause was submitted on briefs filed by both parti...
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Original proceeding. Relators seek to prohibit the Circuit Court of Grundy County from further action in a mandamus proceeding. The will of Helen McAdams, deceased, was exhibited and filed in the probate court within a year from the date of the first publication of notice of letters of administration. It was exhibited on the last day of the year of limitation. The final settlement of the administr...
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This is an original proceeding in the nature of quo warranto whereby the Attorney General seeks to prohibit the Southwestern Bell Telephone Company from maintaining its poles, wires, and conduits on, over and under certain state highways. Upon the filing of the information the respondent entered its voluntary appearance, waived the issuance of our writ and pleaded to the information as and for the...
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In the Circuit Court of Macon County, Missouri, an information was filed charging the appellant with the crime of robbery in the first degree. It alleged that on June 16, 1934, the appellant robbed Mattingly Brothers' store located in the city of Macon, Missouri. On November 1, 1934, he was found guilty as charged in the information and his punishment assessed at five years' imprisonment in the St...
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This is a suit to try and determine title and for ejectment involving about eleven acres of land adjoining Caruthersville in Pemiscot County. Defendants' claim is based on adverse possession. Trial by jury was waived and the court found for plaintiff, who has died since the trial. Revival has been had in the names of the devisees under plaintiff's will. Judgment was entered adjudging plaintiff to ...
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In the Circuit Court of Clay County, Missouri, the appellant filed a petition alleging a common-law action for damages for loss of services, companionship and society of his wife, by *Page 861 reason of personal injuries sustained on October 28, 1931, while she was employed by respondent. The appellant claimed he was damaged in the sum of twenty-five thousand dollars. Respondent's answer alleged,...
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By information filed in the Circuit Court of Dunklin County defendant was charged with robbery in the first degree alleged to have been committed by means of a dangerous and deadly weapon, a pistol. The cause was sent on change of venue to the Circuit Court of Stoddard County, where it was tried, resulting in defendant's conviction and sentence to ten years' imprisonment in the penitentiary. He ap...
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Mandamus instituted by the relator as clerk of the Circuit Court of St. Louis County against respondents as judges of the county court of that county to compel the payment of a claimed arrearage in his official salary. The issues tendered by our alternative writ issued herein may in substance be stated as follows: The relator was elected to the office at the general election in 1934, and assumed t...
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The collector of revenue of Henry County, Missouri, filed suit against appellant for the taxes falling due in the years 1929, 1930, 1931. The trial court found for appellant on the first and second counts of the petition, but rendered judgment in respondent's favor on the third count, which represented the taxes levied for the year 1931. From this judgment an appeal was taken. [1] This case involv...
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In 1888, Joel H. Haden died in Boone County, Missouri, leaving a will which was duly probated. The appellant brought this action to construe the will in reference to the property referred to therein as the "Haden Opera House" and to cancel a lease on this property entered into between W.J. Carter, the administrator c.t.a. of the Haden will and the respondent, the Boone County Trust Company. Briefl...
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This action, for damages for personal injuries, was commenced against defendant railroad and its conductor, Ellis. Plaintiff claimed that the defective condition of a hand brake caused him to fall from the top of a cattle car. Plaintiff had a verdict for $40,000 against defendant railroad, but the jury found in favor of defendant Ellis. The court overruled defendant railroad's motion in arrest and...
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This is an action to try and determine title to real estate in the city of St. Louis. Plaintiffs, each claiming an undivided one-twelfth interest in the land, claimed that defendant, Eleanor Davidge, hereinafter called appellant, owned only a one-half interest therein and the court so found. Appellant claims the whole title and has appealed from the trial court's judgment. The facts are undisputed...
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This proceeding originated in the Probate Court of the City of St. Louis in connection with the administration of the estate of Sarah W. Flynn, deceased, who died testate June 11, 1931. It was commenced by the filing of a petition or application in that court, to the December Term, 1932, by Lawrence C. Flynn, the widower of Sarah W. Flynn, deceased, praying the probate court to require the executo...
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Suit on a $1000 bond issued by the County Court of Stoddard County for and on behalf of defendant, Duck Creek Township. Judgment for plaintiff and defendant appeals. Stoddard County has adopted township organization and the township organization law was effective therein at all times herein involved. [1] We have held that where township organization has been adopted a township is a political subdi...
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This is an action for personal injuries received by plaintiff on December 8, 1927, from the explosion of an Arcola hot water heating plant. The cause was tried to a jury and plaintiff had verdict and judgment for $20,000. Motion for new trial was overruled and defendant appealed. The cause was filed November 16, 1928, and thereafter, an amended petition was filed. Defendant filed answer to the ame...
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This is an action for damages for personal injuries from an explosion in an Arcola heater. It is before this court for the second time. [See Vitale v. Duerbeck, 332 Mo. 1184,62 S.W.2d 559.] The original defendant, William Duerbeck, died after the first trial and the cause was revived against his executrix. A companion case, involving injuries growing out of the same explosion, has also been here t...
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Original proceeding by mandamus to compel the levy and collection of additional uniform taxes against the lands in Lemay Ferry Sewer District of St. Louis County, Missouri, to provide funds to pay certain outstanding warrants of the district. Respondent Donworth filed no return. The other respondents filed returns in the nature of demurrers to the petition on the ground that the petition fails to ...
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Appeal from a judgment and decree setting aside a foreclosure sale under a deed of trust and reinstating the note and deed of trust as live obligations. On April 7, 1927, Claude E. Windsor and Naamah E. Windsor executed and delivered, for value, their certain $7,000, six per centum, note, payable April 7, 1932, to W.I. Diffenderfer, or order, securing the same by a first deed of trust conveying ce...
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Mandamus to compel respondent, Secretary of State, to file in his office certain articles of agreement tendered to him by relators, and to issue and deliver to relators a certified copy thereof. By stipulation of the parties the issuance and service of the alternative writ was waived and relators' petition treated as and for the writ. Proceeding under the provisions of an Act of the Fifty-eighth G...
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Appeal from the judgment of the circuit court sustaining an inheritance tax against distributive shares of the estate of James Costello, deceased. Appellants state the facts as follows: "James Costello, a resident of Clay County, Missouri, died on December 27, 1933, leaving a last will and testament under which his two sisters, Miss Nellie Costello and Mrs. Katie F. Robison, were made equal residu...
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Appellants filed suit in the Circuit Court of the City of St. Louis, seeking specific performance of an alleged oral contract of adoption, alleged to have been made by Hugh Campbell, deceased. The trial court denied the relief prayed for and appellants appealed. Appellants contend that the trial court erred in denying the relief prayed for, while respondents contend that the evidence was insuffici...
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Affirming. The parties to this litigation are adjoining landowners. Both are remote vendees of Thomas I. Becknell. The controversy is over the location of the line between them. Sparks prevailed in the trial court, and Melton appeals. March 23, 1895, Thomas I. Becknell sold to Wm. Sparks the western part of his farm and described it thus: "Beginning at a white oak and two chestnuts, a corner of ...
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Reversing. In an action begun by Mahlon Jones he was adjudged to be the owner of a described tract of land in Perry county, and the defendants were enjoined from trespassing thereon, from which the defendants prosecute this appeal. The Defense The first paragraph of the answer traversed the petition; in the second defendants described their property in which the west...
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Opinion of the Court by —Reversing. From a judgment fixing the priorities, upon certain properties belonging now or formerly to W. P. and Maggie Butcher, of the rights and liens of various parties, and ordering sale in satisfaction thereof, J. W. "Ward has appealed. The Property Affected The properties are described in the judgment as ■consisting of three tracts in Corbin, Ky. They are po...
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Affirming. Eva Ford, on a trial before a jury was awarded $1,223 damages against the city of Bowling Green. The basis of her recovery was that the city negligently permitted a hole to be and remain in the street near the entrance to the south side of the city's park, which caused her to fall and injure her knee. In the "horse and buggy days," the city had constructed on the street, close to this e...
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Affirming. On September 1, 1928, Carlisle county had a floating indebtedness of $47,000. The record before us shows that this indebtedness had been incurred in the construction, reconstruction, and maintenance of the county roads and bridges. On September 10, 1928, the fiscal court of Carlisle county authorized the issuance and sale of $47,000 of funding bonds. The bonds were dated September 1, 19...
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Affirming in part and reversing in part. The Louisville Nashville Railroad Company operates a line of railway from Louisville to Corbin known as the "Lebanon branch," and from Louisville to Bowling Green known as "main stem first division." All trains on both of the branches use the same track between Louisville and Lebanon Junction, a distance of about 30 miles. B.F. Bryant and W.C. Roller, form...
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Affirming. H.D. Wolford, an employee of the Kentucky Fluorspar Company, was assaulted by a fellow workman and seriously injured. The Workmen's Compensation Board awarded the injured employee $3 per week for 268 weeks, and the Crittenden circuit court affirmed the award. On this appeal from that judgment, the company insists that Wolford's injury did not result from an accident arising out of his e...
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Affirming. At the May, 1934, term of the Laurel circuit court, appellant was tried and convicted of the crime of grand larceny, and sentenced to the State Reformatory for a period of five years. He prosecuted his appeal to this court, and the judgment of the circuit court was reversed by this court on May 3, 1935, with directions to grant appellant a new trial. 259 Ky. 73,82 S.W.2d 222. The mandat...
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Reversing. Section 125, Kentucky Statutes, reads as follows: "No Commonwealth's attorney shall be paid, or receive as compensation for his services as such officer, for any one year, from the state treasury, more than four thousand dollars; and should the salary and per centum of fines and forfeitures allowed under this act to such officer in any district, for any year, exceed said sum of four t...
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Reversing. This is an appeal from a judgment for $4,000 for the death of Cas Brush, who was run over and killed by one of appellant's engines in its yards at Jackson, Ky. The accident happened early in the morning of March 21, 1934, on what is known as the "hole" track *Page 539 which leaves the yard tracks and runs north off of the railroad property to the Powell-Hackney Grocery Company store. A...
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Reversing. The appeal is from a judgment based on a directed verdict. The only question is whether there was sufficient evidence of negligence to take the case to the jury. Briefly stated the facts are: The Bowman Watts Company owned a truck which was driven by Alvin Dalton. According to William Marion Thomas, who was seven years of age at the time of the accident, he and his ten year old brother ...
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Reversing. In September, 1932, appellant filed suit against appellee alleging an indebtedness of $7,000 evidenced by two promissory notes of $3,500, which had been transferred to appellant by original payees. Pleadings were filed, which drew motions to strike and demurrers, which need not be noted since amended and substituted answer was finally filed, completing the issues. *Page 605 Substantial...
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Affirming. John R. Minge and wife own two residences fronting *Page 536 on Newland avenue in the city of Hazard, one of which they occupy as a home and the other is let to tenants. They instituted this action against the city of Hazard and T.D. Draughn alleging in substance that defendants are threatening to cut off water from two residences and discontinue water service to them, and threatening ...
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Affirming. *Page 430 Jobe and Lee Sargent were jointly indicted at the February term, 1935, of the Laurel circuit court charged with stealing a horse, the property of John Webb. At the same term of the court they were also jointly indicted charged with stealing a horse, the property of Luther McKnight. They were tried under the two indictments at the same time. The jury's verdict fixed the punish...
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Affirming. The appellant, Dewey Hornsby, having been indicted and charged with committing the offense of storehouse breaking, was upon trial convicted and his punishment fixed at four years' confinement in the penitentiary. *Page 614 The evidence introduced by the commonwealth, tending to establish the appellant's guilt of this crime, consisted of the testimony of one George Simon, who testified ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 448 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 449 Reversing. The first-entitled action is to recover damages for personal injuries sustained by the alleged negl...
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Affirming. Prior to and on the 5th day of February, 1930, the Hargis Bank Trust Company, a corporation, organized and existing under the laws of this commonwealth, was engaged in the general banking business at Jackson, Ky. On that date it closed its doors and was placed in the hands of the state banking and securities commissioner, under section 165a-16, Kentucky Statutes. James S. Williams was ...
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Reversing. This case is unusual in its pleadings and the judgment rendered. The petition states the relation between Ollie McFarland, Fannie McFarland, and Robert McFarland; the first was his mother, the second his wife, and the third, his son; and that he married in 1932 and died in 1934; that in March, 1934, he bought of Martha Davis and Louis Davis a small tract of land situated in the city lim...
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Reversing. Less Brummett appeals from a two-year sentence for housebreaking. *Page 461 The evidence for the commonwealth is as follows: O.M. Travis owns a store in Monticello. The night previous to the breaking the windows and doors of the storehouse were locked. When Mr. Travis appeared the next morning, he found that the glass over the transom had been broken out and the store entered and a qua...
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Reversing. James D. Pratt sued A.M. Gross, sheriff, John Riddle, deputy sheriff, and Kirby Cornett, justice of the peace, of Perry county, Ky., to recover damages *Page 522 for false imprisonment. After stating in his petition the election of Gross as sheriff and Cornett as justice of the peace, he makes no further allegations concerning them. For his cause of action against Riddle he charged tha...
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Affirming. In 1927 W.W. Cox, a resident of Oldham county, *Page 482 purchased through a representative of the Bankers Bond Company one bond for $1,000, known as the Commodore Apartment 6 per cent. serial gold bond, No. M-68, and two bonds for $500 each, known as Briarcliffe Apartment 6 per cent, serial gold bonds, Nos. D-61 and D-67, all of which were guaranteed as to payment of both principal an...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 476 Reversing. On June 21, 1934, automobiles driven by Miss Jessie Field and Russell McCandless came in collision at the intersection of Greenup and Twentieth streets in the city of Covington. Miss Mary Collins was returning to her home from a grocery at the ...
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Affirming. The decisive question presented is whether $190,000 of road and bridge bonds issued and sold by Whitley *Page 442 county are invalid. The county claiming they are invalid, by this action sought their cancellation. Issues were formed by appropriate pleadings, and there is no question of practice or pleadings presented, except as to Dr. C.B. Rice, to which we shall hereafter advert. The ...
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Reversing. *Page 500 W.F. Linville died testate a resident of Pulaski county, Kentucky, and his will was duly probated. The items of his will involved in this litigation read: "4. To wife Sabra Linville, bequeath the remainder of my estate both real and personal in the following manner – $500 cash; and the use of the house where we now live in Somerset, Kentucky, the same to be shared by fath...
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Affirming. On the 10th day of October, 1932, G.V. Theobald, plaintiff below, and Edward A. Heileman and Roscoe C. Lucas, partners, defendants below, entered into a written contract by the terms of which (1) plaintiff sold to defendants his drugstore, including all merchandise therein, exclusive of the fixtures, for the agreed price of $4,670, which sum was paid; (2) defendants were given the privi...
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Reversing. A default judgment was rendered against the appellant, Miss Bettie Withers, for the principal sum of about $4,700 in favor of the appellee Kentucky Joint Stock Land Bank. The executor of the estate of M.T. McEldowney was adjudged a second lien for the principal sum of $1,000 to attach to the proceeds of the sale. These debts were secured by a mortgage on 68 acres of land near Sharpsburg...
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Affirming. The treatment we accorded to this case upon its last visit to this court (there being yet others) is contained in our opinion in the case of Maynard v. Maynard's Adm'r, 251 Ky. 246, 64 S.W.2d 567, 91 A.L.R. 697. The salient facts as therein shown are that Kentucky Maynard, before her marriage to appellee, A.J. Maynard, was the wife of a Mr. Music, who died in October, 1926. In February...
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Affirming in part and reversing in part. Paducah, a city of the second class with a population according to the last federal census of over 33,000, is operating under the commission form of government. In February, 1936, an ordinance was duly and legally adopted by the board of commissioners of the city, authorizing, subject to the approval of the court, the issuance and sale of funding bonds in t...
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Reversing. C.S. Brookins, claiming to be a creditor of the estate of Henry Moore, filed this action in the Ballard circuit court to settle his estate. In addition to the necessary and usual allegations required by section 428, Civil Code of Practice, to settle the estate of a deceased person, Brookins alleged in his petition that A.J. Moore died testate, a resident of Ballard county, Ky., leaving ...
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Affirming. Appellants in a petition in equity filed in May, 1933, made parties defendant the appellees, Rudd, a landowner in Marshall county, and Lindsey, the county road engineer at the time mentioned. The appellants are also landowners of the same county. Prior to December, 1932, a public highway leading from Old Wadesboro to Brewers Mill ran through the land of Jones for some distance, then ent...
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Reversing. The appellant, Josephine Steele, was indicted at the June special term, 1935, of the Pike circuit court, charging her with the willful murder of her ex-husband, John D. Steele. *Page 559 Upon trial, she was convicted of manslaughter and sentenced to two years' confinement in the penitentiary. She appeals, relying upon the following grounds for a reversal of the judgment: (1) The refusa...
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Affirming. *Page 557 The appeal asks a reversal of a judgment enjoining the appellant from changing and consolidating in part certain school districts. About the year 1924, mining operations were opened at a place called Insull on the boundary line of Bell and Harlan counties. It has become quite a large settlement. A school was established in Harlan county a short distance from the line. The Bel...
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Affirming. The appellant and plaintiff below, Charles L. Davis, resides in Birdsville, Livingston county; Ky., where he has operated, since 1906, a general merchandise store, and since 1909 he has acted as United States postmaster, with the office in his store. In 1920 he obtained from the appellee and defendant below, New England Mutual Life Insurance Company of Boston, Mass., a policy on his lif...
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Affirming. The appellants here, sixteen or more in number, are sons and daughters (with their respective spouses) and grandchildren of Patrick Mays, deceased, while the appellees are the son and daughter-in-law; this son being of a second marriage of the father. By the petition it was sought to cancel a deed to real estate and a written contract conveying personal property to the son Otis; the gro...
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Reversing. *Page 510 Ewing P. Gilson brought this action to have declared void a contract of sale of stock of the Kentucky Cooperage Company and to recover the contract price of the Kentucky Cooperage Company, Edward Brockhaus Co., agent of the Kentucky Cooperage Company, Charles W. Inman, Claude Boone, Henry L. Brooks, Stanley B. Young, and Harry G. Inman, directors and officers of the Kentucky...
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■ Opinion op the Court by —Affirming. The judgment appealed dismissed a petition and intervening petition of creditors of Elijah Welch, seeking to set aside certain conveyances as fraudulent. On December 2, 1931, the appellant, Kitchen Whitt & Co., filed suit on a merchandise account for $743.42, with interest from November 1, 1930, and obtained judgment by default on February 1...
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Affirming. The Mercantile Realty Company asserted a landlord's lien for $2,720 on certain shoes valued at $1,526.70 and a small lot of shoe fixtures valued at $62.25, for use or rent of a building at 629 South Fourth street in Louisville, Ky., from July 20, 1932, to November 26, 1932, and, having been unsuccessful, it has appealed. The Facts. On February 1, 1929, the...
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This action originated in the court of the justice of peace within and for Drew County, Arkansas. It was filed on January 22, 1935, and resulted in a judgment on March 1, 1935, in favor of plaintiff, Barton-Mansfield Company. During all that time the General Assembly was in session, Hon. W. F. Norrell being the senator from the ___________ senatorial district composed of Drew and Desha counties. U...
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Each of the appellees filed suit in the Crawford Circuit Court on June 6, 1934, against the appellants for damages alleged to have been caused by the negligence of appellants. The trial court consolidated the cases, and they were tried together before the same jury. Appellees alleged in their complaints that the appellants carelessly and negligently took up the tracks crossing the street and highw...
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This action was begun in the Hot Spring Circuit Court by the appellee to recover damages which he alleged were caused by the negligence of *Page 381 the appellant. He alleged that he was driving a Ford roadster along the paved highway from Hot Springs to Arkadelphia and was about three and one-half miles from Hot Springs when a truck belonging to the appellant, which was being driven toward Hot S...
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By way of intervention, appellants filed their joint and several motion to vacate a certain judgment of the Prairie Circuit Court made and entered September 18, 1930, in which action the State of Arkansas was plaintiff and the White River Bridge Corporation and the New York Trust Company were defendants. The judgment sought to be vacated is as follows: "Now on this day comes the plaintiff, the Sta...
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Walter E. Taylor, as Bank Commissioner, procured a judgment against A. V. Martin et al., for $39,550 and costs. On July 11, 1933, the Bank Commissioner filed a petition in the chancery court alleging the above indebtedness to be unsatisfied, that Magnolia Petroleum Company and others, naming them, were indebted for rents on buildings occupied by them, the exact amount of such rents not being known...
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The appellee brought this action against the appellants in the Faulkner Circuit Court to recover damages for injuries alleged to have been caused by the negligence of the appellants. Among other things, he alleged in his complaint: "On January 13, 1934, the plaintiff was driving his automobile south along highway No. 65 at the southern corporate limits of the city of Conway, Arkansas, and while he...
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S. N. Gunther, plaintiff in the circuit court, appellant on appeal, sued L. N. Cotner, J. M. Cotner, and J. C. Cotner upon two notes. The first note, dated January 3, 1928, matured October 15, 1928, and was for the sum of $385 with interest from maturity at ten per cent. per annum until paid. The second note dated December 12, 1929, matured six months after date with interest from date at ten per ...
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In August, 1929, J. L. Henson, now deceased, executed his promissory note in favor of L. H. *Page 545 Saiewitz in the sum of $1,500 with interest at 8 per cent., due one year after date. To secure this note Henson and his wife executed a mortgage on certain real property in the city of Fort Smith. In December, 1931, Saiewitz died and A. L. Hendricks was appointed administrator of his estate. At t...
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The grand jury in Garland County indicated Roy House and Ayliff Draper of the crime of murder in the first degree for the killing of Tom Menser. The homicide occurred in March of 1935. Separate trials were awarded the parties, and upon the trial of House he was convicted of murder in the first degree, and his punishment was fixed at death. This trial was had last October. He has appealed from that...
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Mrs. Bessie Vincent carried an automobile liability insurance policy with defendant. The husband of Mrs. Vincent loaned the automobile to their nephew, Vincent McCord, to go to a dance. Vincent McCord was only 15 years old. During an intermission at the dance, Vincent McCord and Kirkwood Trotter, a young man 25 years old, started in this car to the Banner office. Trotter was driving. On the trip c...
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This is an appeal from a judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission. Anderson Motor Service, Inc., and Brashear Truck Company, Inc., filed complaint with the commission alleging they were holders of certificates of convenience and necessity authorizing them to render motor carrier service between St. Louis, Missouri, and Kansas City, *Page 574 ...
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This cause is to construe the will of Lewis Lowmiller who died in Macon County, Missouri, May 23, 1933. The finding and judgment below went for defendants and unsuccessful in motion for new trial, plaintiffs appealed. The appeal was first lodged in the Kansas City Court of Appeals and was transferred here on the ground that title to real estate is involved. [Art. VI, Sec. 12, Constitution; Moore v...
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This is an appeal from a judgment rendered in the Circuit Court of Miller County, Missouri, where the appellant was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for his natural life. He was charged with having murdered Charles T. Babcoke. The evidence tended to show that Charles T. Babcoke lived on a forty-acre farm south of Eldon, in Miller County, Mis...
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Defendant was convicted of robbery in the first degree committed by means of a dangerous and deadly weapon, to-wit, a pistol, was sentenced to imprisonment in the penitentiary for twenty-two years, and has perfected an appeal to this court. On November 14, 1933, two men entered the farm home of Mr. and Mrs. Frank Blanton and at the point of a pistol or pistols robbed Mrs. Blanton of about $200. Mr...
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On October 26, 1933, an indictment was filed in the Circuit Court of Crawford County, Missouri, charging appellant with the crime of forgery in the third degree, as defined in Section 4192, Revised Statutes 1929 (Mo. Stat. Ann., p. 2945). The particular charge was that appellant, as cashier of the Crawford County Farmers' Bank, had, with intent to defraud the bank, made five false entries in a boo...
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Lester Pope was convicted of the robbery in the first degree of the Bank of Fairport, a corporation, and appeals from a judgment imposing a sentence of five years' imprisonment. From the State's evidence it appears that soon after the noon hour of July 12, 1933, William E. Johnson and Jesse J. Colter entered the Bank of Fairport and at the point of guns compelled Briscoe Burnham, assistant cashier...
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This is an action for personal injuries alleged to have been caused by the plaintiff falling upon the floor of defendant's store, while in said store shopping. Plaintiff's allegations of negligence are based upon the statement that shortly before she fell upon the floor the agents and servants had mopped said floor so "that the floor of said store, at said time, upon which plaintiff was walking an...
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From an adverse judgment in the sum of $5000 in favor of the plaintiff in an action against defendant for personal *Page 435 injuries sustained by reason of alleged negligence of the defendant, the defendant, after unsuccessful motions for new trial and in arrest of judgment, prosecutes this appeal. On December 22, 1932, the plaintiff, while walking north on the sidewalk on the east side of Penns...
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Meldon White Glenn, respondent herein, on February 21, 1927, filed her statement and affidavit in replevin before the Honorable Sutton R. Layton, justice of the peace, Kaw township, Jackson county, Missouri, naming as defendants Nellie A. Gibbs, J.H. Zimmerman and Jack Thomas (the last being appellant herein). At the same time, respondent filed her bond in replevin with the said justice of the pea...
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This is an appeal from an order of the circuit court sustaining a motion to quash an execution by the sureties on the defendant insurance company's appeal bond from a justice of the peace. *Page 403 On January 31, 1933, the plaintiff instituted an action before J.J. Dougherty, a justice of the peace of Kaw township, Jackson county, Missouri, against the Surety Life Insurance Company as defendant,...
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This is an appeal from the final judgment of the Circuit Court of Jackson County affirming an award of the Workmen's Compensation Commission. On January 17, 1934, the respondent, Mrs. Martha Tralle, as claimant, filed before the Workmen's Compensation Commission her claim as the widow and dependent of Edmound H. Tralle, her deceased husband, an employee of the Chevrolet Motor Company, for compensa...
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This is an appeal from an order vacating an award made in an arbitration proceeding between the Pope Construction Company and the State Highway Commission. The facts show that the Pope Construction Company (hereinafter referred to as the construction company) constructed certain state highway projects in DeKalb and Andrew counties under a contract therefor with the State Highway Commission. Upon t...
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This is a suit on a special tax bill and for the enforcement of the lien thereof for paving and other street improvements issued August 20, 1930, by the city of Excelsior Springs, a city of the third class, against Lot 11, Block 1, Beacon Hill Addition to said city, of which lot the defendants appear to be the owners. The petition alleges that the city of Excelsior Springs is a city of the third c...
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This is a suit on bond, the petition being as follows: "Plaintiff states that on or about the 21st day of June, 1933, he instituted suit against Charles Briddle before William McRuer, justice of the peace within and for Pettis Township, Platte County, Missouri, wherein attachment was issued and money of said Charles Briddle was levied upon by the constable of Pettis Township; that on July 6, 1933,...
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This case is here on certified questions from the Court of Civil Appeals at Amarillo. The certificate reads as follows: "The State of Texas granted to Childress County four leagues of public free school land, situated in Bailey and Cochran Counties. "On June 20, 1910, acting by and through its Commissioners' Court, Childress County, as First Party, entered into a written contract with S. P. Britt ...
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This suit was brought by Dr. M. L. Weinfield, who will be designated as plaintiff, against Hill Cocke, herein referred to as defendant. It was in the nature of trespass to try title to a lot of land in the City of San Antonio, and to remove cloud from title. It is admitted that prior to the year 1918 plaintiff was the owner of the lot in question. The State and county taxes for that year became de...
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There has been filed in this court in this cause an agreement by all parties showing settlement of all matters in controversy herein. It is further agreed that the action of the Court of Civil Appeals reversing and remanding the cause may be here affirmed, in order that the agreed settlement may be effected in the trial court. The judgment of the Court of Civil Appeals reversing and remanding the ...
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This is a suit under the Workmen's Compensation Law. The defendant in error, Francis A. Arnold, herein sometimes designated as the claimant, is the surviving adult son of the deceased employee, J. P. Arnold. By agreement of the parties in the trial court all fact questions were eliminated except the issue whether the claimant was a beneficiary of the deceased employee. That issue was submitted to ...
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Defendant in error filed in the District Court of Dallas County a bill of review for the purpose of obtaining relief from a final judgment for debt which had been rendered against him in an action brought in said court by plaintiff in error. The *Page 244 bill alleged in detail facts indicating that the petitioner was prevented from making defense to said action by the wrongful act of plaintiff i...
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The offense is the unlawful manufacture of intoxicating liquor; penalty assessed at confinement in the penitentiary for one year. Since the conviction of the appellant, the law upon which the prosecution is founded .has been repealed. See Meadows v. State, (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed and the prosecution ordered dismissed....
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The appellant was tried and convicted of the offense of illegally performing an abortion and his punishment was assessed at confinement in the state penitentiary for a term of two years. Appellant's first contention is that the court erred in permitting a practical nurse to testify that an unborn child or foetus is located in a woman's womb. Appellant objected to said testimony on the ground that ...
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Conviction for robbery; punishment, ten years in the penitentiary. The record is here without statement of facts or bills of exception. All matters of procedure appear regular.' The judgment is affirmed....
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Conviction is for possessing intoxicating liquor for the purpose of sale; punishment assessed being one year in the penitentiary. Since the conviction herein, the law under which the prosecution proceeded has been repealed. Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed and the prosecution ordered dismissed....
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The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year. Since the conviction of the appellant, the law upon which the prosecution is founded has been repealed. See Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed and the prosecution ordered dismissed.'...
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The offense is driving an automobile upon the public highway while intoxicated; *1027penalty assessed at confinement in the penitentiary for two years. . The indictment appears regular. The record is before us without statement of facts or bills of exception. No error has been perceived or pointed out. The judgment is affirmed....
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The appellant was tried and convicted of the offense of murder and his punishment was assessed at death. The record shows that appellant and deceased, who were husband and wife, had been living with her father up to a short time prior to the fatal night; that while they lived with her father a disagreement arose between appellant and his father-in-law, which resulted in a personal combat, and this...
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The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year. Since the conviction of the appellant, the law upon which the prosecution is founded has been repealed. See Meadows v. State (Tex.Cr.App.) 88 S.W.(2d) 481. The judgment is reversed and the prosecution ordered dismissed....
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Aggravated assault is the offense; penalty assessed at a fine of $1,000. The complaint and information appear regular. The record is before this court without statement of facts or bills of exception. No error has been perceived or pointed out. The judgment is affirmed....
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The conviction is for aggravated assault; penalty assessed at a fine of $1,000. The complaint and information appeal-regular and properly presented. The record is before this court without statement of facts or bills of exception. Nothing has been presented justifying a reversal or requiring discussion. The judgment is affirmed....
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The offense is possession of whisky for the purpose of sale; the punishment, confinement in the penitentiary for one year. Pending appeal, the law under which appellant was convicted has been repealed. The judgment is reversed and the prosecution ordered dismissed. PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and ap...
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The offense is theft of property over the value of fifty dollars; the punishment, confinement in the penitentiary for two years. We are not warranted in considering the statement of facts as it bears no certificate showing the approval of the trial judge. Vicera v. State, 27 S.W.2d 545. *Page 101 No bills of exception are brought forward. The judgment is affirmed. The foregoing opinion of the Com...
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The appellant was tried and convicted of the offense of unlawfully possessing intoxicating liquor, to wit, whisky, for the purpose of sale; and his punishment was assessed at confinement in the state penitentiary for a term of one year. Pending the appeal of this case, the law (Pen.Code 1925, art. 666 et seq., as amended) under which this conviction was had has been repealed. See Acts of the 44th ...
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The appellant was tried and convicted of the offense of forgery and his punishment was assessed at confinement in the state penitentiary for a term of two years. The first count of the indictment, upon which appellant was convicted, omitting the formal parts, reads as follows: "That J. Howard Christian in the County of Tarrant and State aforesaid, heretofore on the 8th day of January, A.D. 1935, d...
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The offense is robbery; penalty assessed at confinement in the penitentiary for twenty-fiVe years. Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed. MORROW, P. J., absent....
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The offense is assault with intent to murder; the punishment, confinement in the penitentiary for one year. The record is before us without a statement of facts or bills of exception. No question is presented for review. The judgment is affirmed. *1036MORROW, P. J., absent. PER CURIAM. The foregoing opinion of the Commission of Appeals’has been examined by the judges of the Court of Criminal Appea...
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This is an appeal from a final judgment of the District Court of Webb County upon a forfeiture of a recognizance theretofore entered into by C. R. Williams, as principal, and J. J. Williams and H. G. Tankersley, as sureties, upon an appeal taken from the judgment of conviction of said C. R. Williams to the Court of Criminal Appeals. It appears from the record that C. R. Williams was convicted in t...
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The offense is burglary; penalty assessed at confinement in the penitentiary for six years. Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed. MORROW, P. J., absent....
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The appellant was tried and convicted of burglary and his punishment was assessed at confinement in the state penitentiary for a term of two years. The only contention which appellant makes is that the evidence is insufficient to warrant and sustain the judgment of conviction. The record before us shows that on May 29th, A. D. 1935, the appellant, Cannon, and one Musick were discovered in ...
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Conviction for burglary; punishment, two years in the penitentiary. The evidence is plain, manifesting appellant’s guilt, and there appears no dispute of this proposition save and except a claim that at the time of the alleged burglary appellant was *149 under the influence of narcotics and did not know what he was doing. The charge of the court is regarded by us as being very favorable to ap...
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The offense is murder; the punishment, confinement in the penitentiary for eight years. It was charged in the indictment, in substance, that appellant, with malice aforethought, killed T. A. Nichols by cutting, slashing and stabbing him with a knife. The homicide occurred on the 9th of September, 1934. At the end of a game of dice, which had been in progress for several hours, deceased and appella...
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The offense is robbery; penalty assessed at confinement in the penitentiary for fifteen years. Upon the written‘request of the appellant, duly verified by his affidavit, the appeal is dismissed. MORROW, P. J., absent....
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Conviction is for unlawfully carrying a pistol, punishment being confinement in jail for one year. On the night of the 8th or 9th of May, 1935, appellant was at a night club in the City of San Antonio. At the table with appellant were "Skeeter" Claus and his wife, Mr. Williams, McChavey and a Mrs. Dooley. At a nearby table were seated. Russell Jeanette, Jr., George Porter, Mr. Smallwood and two la...
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The appellant was tried and convicted of the offense of robbery, and his punishment was assessed at confinement in the state penitentiary for a term of five years. The record shows that on the 17th day of April, 1934, and for some time prior thereto Frank Farek owned and operated a restaurant and filling station at a point where the highway leading from Corsicana to Waco and the one leading from M...
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Conviction for wife desertion; punishment, one year in the penitentiary. On a former day of this term we declined to consider the statement of facts herein because it appeared that same had not been filed in the court below, and no fundamental error appearing in the record the .judgment of the trial court was affirmed. Since then the clerk of the court below has filed his affidavit certifying t...
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The offense is driving an automobile on a public road while intoxicated; the punishment, a fine of $100. The proof on the part of the State was to the effect that, while intoxicated, appellant drove her automobile on North 8th Street in the City of Abilene. Appellant's witnesses admitted that she was intoxicated, but declared that one Bill Summers was driving the car. Omitting the formal averments...
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Alice C. Goeke and certain other parties, plaintiffs below, creditors of the estate of Otto E. Baumgart, deceased, instituted this suit in the district court of Washington county against Ernest H. Baumgart, individually and as executor of the estate of Otto E. Baumgart, deceased, and against the surviving children of the deceased, and against Southland Life Insurance Company, Texas Mutual Life Ass...
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This suit was instituted by Minnie May Palmer against Continental Southland Savings Loan Association, Donald McGregor, and Ralph Beaton, seeking, by injunction, to prevent the defendants from exercising the power of sale under a deed of trust, claiming that the lien created thereby and owned by Continental Southland Savings Loan Association was invalid and constituted a cloud upon her homestead....
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Appeal from a judgment in favor of defendants below (appellees) in a suit to set aside an order of the Railroad Commission granting to appellee Jackson a permit to drill an oil well upon a .13-acre tract in the East Texas oil field as an exception to Spacing Rule 37, in order "to prevent confiscation of property." The case may be more readily understood by reference to the following map: [EDITORS'...
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The controversy in this case involves a plea of homestead to 200 acres out of a 638-acre tract securing, by trust deed, two $2,000 notes. In a former appeal a judgment in favor of appellees, establishing the homestead plea, was reversed because the trial court did not submit to the jury the issue of estoppel on appellees' part to assert the homestead claim. (Tex.Civ.App.) 73 S.W.2d 593. In the tri...
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Appeal from a judgment in favor of defendants below (appellees) in a suit to set aside an order of the commission granting appellee Sanford a permit to drill a second oil well on a .43-acre tract in the East Texas oil field, as an exception to Spacing Rule 37. The .43-acre tract in question is the Church tract referred to in cause No. 8389 of the same style as this cause (Tex.Civ.App.) 92 S.W.2d 1...
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August 1, 1933, E. G. Smith operated a motor freight line in Jefferson county, Tex., and other points in the state, under the name of Southern Motor Lines. From August 1, 1933, to September 29, 1934, appellee, Anderson, worked for appellant, Smith, driving a freight truck for which he was to and did receive certain stipulated wages weekly. After he ceased to be an employee of Smith, on December 4,...
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Appeal from a judgment in favor of defendants below (appellees) in a suit to set aside an order of the commission granting to appellee Overton Refining Company a permit to drill a second oil well on a .28-acre tract of land in the East Texas oil field as an exception to Spacing Rule 37. The well in question is well No. 2, on the tract referred to as the Bolt tract in cause No. 8389 of the same sty...
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On Rehearing. Appellee, in his motion for rehearing, complains only of our refusal to strike-appellant’s brief. In that connection he insists that the facts with reference to the filing of appellant’s brief are different from the facts in the companion case of E. G. Smith v. T. Anderson (Tex.Civ.App.) 92- S.W.(2d) 1061, referred to in our original opinion. Here, as in the Anderson Case, appellant’...
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This action for damages was brought by J. B. Jurach against Paul Cox, in the district court of Nueces county, and tried in the district court of San Patricio county, to which the venue had been changed, upon application of Cox. From an adverse judgment, Jurach has appealed by writ of error. The parties will be here designated as plaintiff and defendant, respectively, as in the trial court. At t...
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This is a suit for mandamus and injunction brought by Mrs. Lova Mae Stovall against Earl Isbill, county superintendent, and Mrs. Frank Heflin, joined by her husband, Frank Heflin. W. W. Matlock and *Page 1069 John W. Harber, "as rural trustees of Nugent Common School District No. 25 of Jones County and in such capacity as such trustees," intervened, and in addition to a general demurrer and gener...
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This action was brought by the state of Texas against F. H. Miller to condemn for highway purposes a strip of land consisting of a total of 2.61 acres across Miller's farm containing 127 acres. The jury awarded damages in the sum of $3,000. The state appealed. The strip of land condemned included the main farm residence, being a two-story frame building of eight rooms. The state alleged that said ...
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This suit was instituted by John T. Young, as mayor of the city of Wichita Falls and as a taxpaying citizen, to restrain its board of aldermen and other city officers from transferring $75,000 from its water fund to its general tax fund. According to allegations in the petition, a resolution authorizing such transfer has been passed by four of the aldermen of the city at a special meeting. It was ...
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Rex Rotan, in 1932, bought a secondhand automobile from L. L. Taylor and sold it to one S.E. Fisher. Appellee, Ray Puckett, was, at that time, in the business of lending money on automobiles, and Rotan carried Fisher to Puckett, where the loan, representing the purchase price, was made in the sum of $350, Fisher giving a note and chattel mortgage on the car. The money was paid by Puckett to Rotan....
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Appellee, hereafter referred to as the bank, sued R. J. Peter and M. N. Peter as makers, and Jake Alexander as indorser, on six promissory notes for the sum of $2,500 each, dated February 21, 1930, a part of which were past due and the others declared due by the bank under the accelerating maturity provisions thereof. The appellants pleaded want of consideration, and by cross-action sought to reco...
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This suit was instituted in the district court of Hutchinson county by plaintiff, Traders General Insurance Company, against the defendant, R. L. Patton, to set aside the decision of the Industrial Accident Board awarding defendant compensation for alleged injuries he claimed to have received on March 10, 1932, while in the employ of J. M. Huber Company of Louisiana, Inc. No complaint is made of ...
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Appellant and appellees are the grandchildren of Mrs. Victorine Houston, who died testate in 1923. Appellant, son of Tom Houston, was born long after the death of testatrix, and the payment of all the debts against her estate. Appellees contended below, and the trial court held, that appellant had no interest in the estate of testatrix under the following will and codicils: “At home, in view of th...
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This cause involves the collision of an automobile with a truck, the collision having occurred at the intersection of a public highway, known as the Northwest highway, which runs in an easterly and westerly direction north of the city of Dallas, and Lemmon Avenue road, which is an extension of a street within the city limits of Dallas that leads north to points in Dallas county and north thereof. ...
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Appellant, John L. Little, brought this suit against Alfonso Newton, Jr., and his bondsmen, as sheriff of Bexar county, Tex., to recover damages alleged to have been sustained by him by reason of the levy of a writ of attachment, alleged to have been made by J. A. N. Florez, deputy sheriff, and taken into the possession of the deputy sheriff. The property levied upon is fully described and consis...
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Appellants, judgment creditors of C. W. Duecker, garnished Henry J. Burg. The garnishee answered: "Answering to the question in said writ as to `What, if anything, he is indebted to the said C. W. Duecker, said defendant, and was when this writ was served upon him' he answers: Approximately on the 20th day of November, 1934, the son-in-law of C. W. Duecker, Herbert Haas, informed me that his fathe...
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Jimmie Cunningham, relator, obtained a judgment in the county court of Young county, Tex., against the Universal Credit Company, one of the respondents. The credit company undertook to appeal from that judgment to this Court of Civil Appeals, but because of the failure to file the appeal bond within the statutory period, on proper motion, we dismissed the appeal. At the time of dismissal, the judg...
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This action was brought by Sterchi Furniture Company, a San Antonio corporation, against Joseph K. Junkin and his wife, Lola, who were engaged in the furniture business at Harlingen under the trade-name of Junkin Furniture Company, and against a Mercedes bank. The action was one for an accounting and for injunction, as well as for the appointment of a receiver for the stock, accounts, and bank dep...
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H. M. Hale and H. W. Hale sued the Tide Water Oil Company and others in the district court of Rusk county in trespass to try title to two tracts of land out of the John Darley survey in said county; the first tract being .12 of an acre, and the second tract being 2.7 acres. Tide Water Oil Company answered by general denial, a plea of not guilty, and by cross-action against the plaintiffs and three...
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This appeal is from a judgment of the county court of Trinity county, Tex., wherein appellee recovered judgment against appellant for possession of a shoe repairing machine of the alleged value of $185, which it had leased to him. The only material question in the case is the right of appellee, a Massachusetts corporation, to maintain this suit. It has no permit to do business in this state as req...
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This suit was brought by Victoria Houston against Atlanta Life Insurance Company to recover upon an insurance policy for $500 issued to Henry Houston, husband of plaintiff, and naming plaintiff as beneficiary. The policy was issued on January 16, 1928; Henry Houston died on the 1st day of August, 1934. The insurance company claimed that the policy had lapsed before the death of the insured an...
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* Mandamus refused by Supreme Court April 15, 1936. The judgment of the trial court was affirmed in this court by an opinion handed down January 17, 1936 (90 S.W.2d 868). Thereafter, on February 14, 1936, the appellant's motion for rehearing was overruled. On March 2, 1936, the appellant filed a motion requesting this court to certify to the Supreme Court certain questions arising on the appeal. I...
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Humble Oil Refining Company filed this suit against the Railroad Commission and its members, C. L. McCorkle, as guardian of the estate of Tabitha Johnson, Burton Drilling Company, Inc., and C. P. Burton, in the nature of an appeal from the order of the commission granting C. L. McCorkle, guardian, a permit to drill an oil well on a 5.47-acre tract of land in the East Texas oil field as an excepti...
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On December 17, 1932, appellee, M. O. Dolan, filed this suit in statutory form of trespass to try title to an undivided one-half interest in 565 acres of land in Live Oak county, fully described in his petition.' The suit is brought against Mrs. Ella H. Johnson, appellee’s mother, Frank Johnson, appellee’s stepfather, and appellant, the Dallas Joint Stock Land Bank of Dallas, a corporation. The ap...
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For convenience, the parties will be referred to as plaintiff and defendants as they appear in th,e pleadings in the trial court. Plaintiff, T. F. Gholson, brought suit in the district court of Archer county against defendants George Parrish and Alvin Parrish, alleging, in substance, that he was driving his automobile on a public road of the third class, which runs through a certain section of ...
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This suit was instituted by appellants, J. A. Nash and wife, Hattie Nash, in a district court of Dallas county, against appellees, the Hanover Fire Insurance Company and the St. Paul Mercury Indemnity Company, praying for a receivership, for the purpose of subjecting their properties to the payment of a judgment in favor of appellants, in the principal sum of $1,250, together with interest. This j...
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On February 18, 1933, appellee instituted this suit in the district court of Rusk county against appellants and others not parties to this appeal, in trespass to try title, for partition and an accounting. In his petition appellee alleged that he was the legal owner of an undivided one-tenth interest in approximately 130 acres of the Wm. A. Elliott and E. Collard surveys in Rusk county, comprising...
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This suit was filed in Gregg county in the special district court of Gregg and Rusk counties; same being cause No. 96-C on the *Page 1122 docket of said court. Later the cause was duly transferred to the 124th district court of Gregg county, where it was tried on its merits. After this cause was transferred to the 124th district court, other parties were permitted to intervene and the plea of int...
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Appellee sued and recovered judgment against appellant for alleged physical injuries to his wife and for doctor and hospital bills, occasioned by a collision between two motor vehicles, one driven by the agent *Page 1124 of appellant and the other by Mrs. Currie, wife of appellee. Mrs. Currie was driving her automobile south on Concho street in the city of Coleman. The appellant's truck was comin...
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Appellant, Uvalde Paving Company, under a valid contract with the city of University Park, paved Turtle Creek boulevard, in said City, under the provisions of chapter 9, title 28, R.C.S. 1925 (article 1086 et seq.). The city of University Park had theretofore adopted the provisions of chapter 9 of title 28, R.C.S., and all of the statutory requirements were complied with in the making of said cont...
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Suit was filed by Morgan, doing business as the Prescott Oil Company, against the Railroad Commission, as an appeal from its order refusing him a permit or tender to move 14,580 barrels of crude oil captured by him in his pick-up station on Rabbit creek in Gregg county, Tex. He alleged that he had captured said oil as fugitive or abandoned oil flowing down said creek; that he did not know the orig...
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This is the second appeal of this cause, the former appeal is reported in Elder v. King, 69 S.W.2d 479, and the statement of the nature of the case is stated in that opinion by Judge Levy in a clear and concise manner and will be adopted by us in this opinion. This case was tried to a jury on special issues which were answered favorably to appellee upon which the court entered judgment for appelle...
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Marion Marie Walters has appealed from a judgment of the district court of Dallas county, sustaining a general demurrer to *Page 1137 her petition, seeking a recovery on a life insurance policy issued to her husband, Joel Alfred Walters, in which she was named as beneficiary. According to allegations in the petition, defendant issued to plaintiff's husband, Joel Alfred Walters, an original policy...
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The Industrial Accident Board awarded appellee, Jim Dean, compensation for injuries claimed to have been sustained November 13, 1931, as the result of being "gassed" with poisonous gas while opening a valve on a gas line, in the course of his employment with Humble Oil *Page 1141 Refining Company, a subscriber carrying workmen's compensation insurance with appellant, Petroleum Casualty Company. ...
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This is a partition suit filed by Mrs. Anna Crawford, joined pro forma by her husband Paul Crawford, appellants, against G. S. Holt and wife, Sarah A. Holt, Virgil Holt, Wylie Holt, J. D. Holt, and G. F. Holt, appellees, to partition the community estate of the deceased, Adella Holt, former wife of G. S. Holt. On the conclusion of the evidence, the court gave peremptory instruction to the jury in ...
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This appeal was filed in the Galveston Court of Civil Appeals and transferred to this court by orders of the Supreme Court. Appellee, Frank Power, Jr., filed this suit in district court of Jackson county against appellant, Younger Brothers, Inc., a corporation, to recover damages in the sum of $26,000 for personal injuries received by him on the 11th day of August, 1934, in a collision between an ...
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This case was appealed to the Galveston Court of Civil Appeals and transferred to this court by order of the Supreme Court. This is a companion case with Younger Brothers, Incorporated, v. Frank Power, Jr., 92 S.W.2d 1147, wherein we have this day affirmed the judgment of the lower court. For the reasons therein stated, the judgment of the lower court in this cause is also affirmed....
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This appeal was filed in the Galveston Court of Civil Appeals and transferred to this court by orders of the Supreme Court. This is a companion case with Younger Brothers, Inc., Appellant, v. Frank Power, Jr., Appellee, 92 S.W.2d 1147, wherein we have this day affirmed the judgment of the lower court. For the reasons therein stated, the judgment of the lower court in this case is also affirmed....
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This is a companion case with Younger Brothers, Inc., v. Frank Power, Jr., 92 S.W.2d 1147, this day affirmed by this court, and the material facts and issues are the same. For the reasons stated in the opinion of Chief Justice Walker in the Power Case, the judgment of the trial court overruling the plea of privilege in this case is affirmed. *Page 371 ...
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