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All Reporters → tex-app-lexis → Volume 1913
Opinions in tex-app-lexis Volume 1913
The following findings of fact and conclusions of law filed by the trial court herein present a fair statement of the nature and result of this suit, and the facts proven:
"This was a suit originally instituted by the plaintiff, C. W. Post, against J. T. Robison, as land commissioner of the state of Texas, and J. E. Ketner and E. D. Duncan, and after the institution of said cause the state of Texa...
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This was a controversy in the district court of Lubbock county, Tex., between the defendants in error (plaintiffs in the trial court), M. E. Merrill, J. C. Rob-erds, and F. C. Hudgins, and the plhintiffs in error (the defendants in the trial court), W. T. Bush, R. Harkrider, and the Western Realty Company. The Western Realty Company became a party defendant to this cause of action by virtue of an ...
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Appellant, the Kingman Texas Implement Company, a foreign corporation, filed this suit against W. F. Borders, Santos Reyes, James Hogan, Mrs. Exer Gleasner, Wm. Dobrowolski, C. A. Stieren, W. L. Word, Cornelia Word, Grace Sharp, and Daniel Rodriguez to recover from W. F. Borders on debt and foreclosure of a judgment lien on real estate in Bexar county and to establish and foreclose the judgment li...
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The appellee Mrs. M. C. Stone-De Lane, joined by her husband, brought this suit against the appellant to recover damages for personal injuries alleged to have been sustained by her through the negligence of appellant's servants and employés. The petition charges that on or about the 25th day of October, 1911, the plaintiff Mrs. Stone-De Lane took passage on a passenger train at Birmingham, Ala., w...
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Appellee sought the recovery of damages from appellant resulting from the death of a certain mule, which came to its end by being struck by a moving locomotive, operated on the track of appellant in the city of San Antonio. The grounds of negligence were a failure to reduce the speed of the train to 10 miles an hour in obedience to an ordinance of said city, a failure to ring a bell or blow a whis...
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Appellee sued in the court below on a life insurance policy, issued by appellant October 12, 1910, to Angle Olive Briggs, by which appellant agreed to pay Simeon Singleton Briggs, her husband, $2,000 upon the death of the insured. Upon trial without jury judgment was for appellee for $2,540, with interest, the judgment including *Page 910
the statutory penalties and attorney's fees provided for i...
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Appellee instituted this suit against appellant, alleging that he had been granted a license to retail liquor near the city line of San Antonio for a period of one year, commencing on or about July 9, 1912; that on or about August 23, 1912, appellant, claiming to have information that appellee had violated the law as to the sale of liquors, issued a commission to a notary public to take testimony ...
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Appellants sought to recover of appellee the sum of $1,800, alleged to be due for extra work performed and certain marble basins placed in a certain building at the corner of Houston street and Avenue D, in the city of San Antonio, which appellants had contracted to erect for appellee. Appellee denied that the work was extra or that the basins were not included in the contract, and alleged that th...
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W. M. Morgan sued F. M. Peck and J. A. Peck for a balance on a promissory note executed by them to him for $3,000, and the foreclosure of a chattel mortgage on certain furniture. Stowers Furniture Company intervened in the suit, claiming to have a mortgage on the furniture to secure a part of the purchase price of the furniture due to them by Morgan. J. A. Peck did not answer, but F. M. Peck answe...
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This was a suit by G. R. Ragland against J. F. Reid and R. A. Pickens to recover upon a promissory note for $500 with interest and attorney's fees. The note was made payable to the order of G. R. Ragland and W. R. Richardson, and Ragland asserted ownership of the whole note by assignment from Richardson. Upon prayer of the appellant, W. R. Richardson was made a party to the suit. Appellant answere...
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Appellee, Fox, brought this suit against the Gulf, Colorado Sante Fé Railway Company and the appellant, Houston Texas Central Railway Company, to recover damages for personal injuries sustained by his wife, Mrs. Mary Fox, while she was a passenger en route from Celeste, Tex., to Bertram, Tex. Each of the defendants answered by general demurrer, general denial, and pleas of contributory negligenc...
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This is the second appeal of this case; the opinion of this court, upon the former appeal being reported in 116 S.W. 389, to which reference is made for a statement of the nature of the suit. After the reversal of the case appellee filed his third supplemental petition, alleging that the plea of res adjudicata filed by defendant should not be sustained, because the contract made by himself with th...
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Elder, Dempster Co. instituted this action in the county court of Galveston county against the St. Louis Southwestern Railway Company of Texas and the International Great Northern Railroad Company to recover $550, alleged to be the value of certain bales of cotton delivered to defendant by Gussoni Co. at Gatesville, Tex., consignor, to shippers' order, destination Galveston, under proper bill o...
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J. H. Wiles sued L H. Bradford and Patrick Henry on their two promissory notes, one for $675 and the other for $600, and in a separate suit sought a recovery on two notes for the same sums executed by B. M. Daugherty and J. B. Hancock, which, it was alleged, were placed with said Wiles by Bradford and Henry as collateral to secure their notes. The two suits were consolidated. Appellants, Daugherty...
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The Uvalde National Bank sued F. E. Seawell, M. Connor, and J. J. H. Patterson upon a promissory note for $815, alleging that the note was a joint and several obligation, and that Connor’s name was signed thereto by Seawell, who was duly authorized to sign said Connor’s name thereto. Connor filed a plea of non est factum, a general demurrer, and general denial. Patterson admitted the execution of ...
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The appellee Du Pont De Nemours Powder Company, a foreign corporation, sued Mitchell-Pigg Construction Company, W. J. Sparks, J. W. Pigg, H. F. Mitchell, M. D. Plumlee, W. H. Vardeman, A. S. Chapman, J. W. Braselton, and T. R. Erwin, as makers, and Will R. Allen, as indorser, of a negotiable promissory note in the sum of $5,904.05, payable to said Will R. Allen.
Appellee powder company, in the ple...
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This is a suit by the appellant, Bergman Produce Company, against the appellee, R. C. Brown, upon a verified account, claiming a balance of $396.34. The appellee admitted the account, except in so far as it might be defeated in whole or in part by the facts of his answer, which was based upon a purported settlement, claiming that the following checks constituted an accord and satisfaction of the b...
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Thompson, joined by his wife, Elizabeth Thompson, née Elizabeth Mote, W. S. Mote, and Isabel Harrison, née Isabel Mote, claiming as heirs of H. C. Mote, deceased, filed this suit in the district court of Hutchinson county against Flora Mote and her husband, J. J. Mote, to recover their interest in section 73, block R, certificate 71, patent No. 72, vol. 40, G. B. C. N. G. Ry. Co. lands in said co...
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The above cause, resolved into a boundary suit, involves the position of survey No. 21, Day Land Cattle Company certificate, claimed by the appellant, Lucas, and school section No. 6, in block M – 24, in Hutchinson county, Tex., claimed by the appellee, McFarland. The same principle of law announced in the case of Howard B. Crosby et al. v. N. A. Stevenson et al. (case No. 410) 156 S.W. 1110, dec...
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In deciding this cause and the matter of boundary the inserted map indicates the conflict involved in accordance with the key, and the light and heavy dotted lines manifested upon same; but the record is so voluminous with such a multitude of facts it is difficult to illustrate the controlling issue, which of itself may be rather simple. Surveyor Maddox in 1874, in accordance with a scheme of surv...
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B. L. Glenn, appellee, brought suit against the appellant, Western Union Telegraph Company, alleging that appellant failed to use ordinary diligence in the delivery of a message, announcing the death of the brother of appellee's wife, in time for her to attend the funeral service and burial of her brother, which it is alleged she could and would have done. The appellant answered by general denial ...
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In this case appellee sued appellant, alleging that he purchased from the Missouri, Kansas Texas Railway Company, at its office in Oklahoma City, Okla., a railroad ticket entitling him to transportation for himself and his baggage from that point to Dallas, Tex., and that appellant, Missouri, Kansas Texas Railway Company of Texas, is a connecting line of said initial carrier and as such received...
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This is a suit brought by Dudley Olcott II and James N. Wallace, defendants in. error herein, against J. M. Ray and C. U. Connellee, plaintiffs in error, in the district court of Bexar county, Tex., Fifty-Seventh judicial district, December 14, 1911, to establish their ownership of, and to recover the amount due on, a certain judgment rendered in the district court of Bexar county, Tex., Fifty-Se...
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This case comes from the county court of McLennan county, where appellee brought suit against appellant and two railroad companies, seeking to recover damages on account of a carload of hay ordered by appellee from appellant and transported by the other two defendants. The jury returned a verdict in favor of appellee against appellant, and in favor of the other two defendants, holding that they we...
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The appellee instituted this suit against the appellant to recover a diamond stud or its value. It is alleged that ap-pellee had a lien on the diamond, and that it had been converted by the appellant. Appellant answered-by a general denial, and also pleaded in reconvention that appellee had •in his. possession personal property, to which she was entitled, aggregating $850, and asked a judgment for...
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In November, 1911, appellees shipped a carload of bananas to Paris, Tex. It is claimed that, by reason of the negligent failure of the appellant’s employes to promptly place the car in a position where it could be unloaded, a loss was sustained by the decay of the fruit before it could be marketed. Appellees recovered a judgment in the trial court for $233.20 as damages. Only three errors are a...
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February 23, 1911, appellant filed an action of trespass to try title against appellee, seeking to recover certain lots in the city of Waco. Appellee filed an answer which contained a general demurrer, general denial, and plea in reconvention, in which it asked for judgment against appellant for the lots in controversy. Thereafter appellant, as plaintiff in the court below, dismissed his suit agai...
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J. C. League, alleging that he was the owner of an unsatisfied judgment against W. A. Hudson, and that he had just reason to believe and did believe that Thomas B. Scott was indebted to the said Hudson, or had effects belonging to the said Hudson, or to the community estate of said Hudson and his wife, Mrs. Mollie S. Hudson, in his possession, sued out a writ of garnishment against the said Scott,...
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J. H. Wiggins brought this suit against the Texas New Orleans Railroad Company to recover damages sustained by him by reason of the negligence of defendant's ticket agent in Beaumont in selling to plaintiff a ticket to Washington, La., when he called for and thought he was purchasing a ticket to Washburn in said state. Plaintiff alleged that he could neither read nor write, and that this was made...
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By virtue of an execution issued on a judgment against appellant E. L. Walker in favor of the Jacksonville State Bank, one of the appellees, Joe Land, the other appellee, as sheriff, levied on a tract of land in Smith county as the property of said E. L. Walker. Mrs. E. D. Walker, the other appellant, wife of said E. L. Walker, claimed that the land was a part of her separate estate, and, joined ...
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Findings of Fact.
Appellants entered into a written contract of lease with one Weishert for a building to be erected by them; said lease being in part as follows: "That said McConnell Merchant are to erect a building on said lots 50 feet wide and 125 feet long, according to the plans and specification submitted to and approved by the parties of the second part, said bu...
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This was a suit upon a note given for a debt owing by one W. L. Jones to appellee. Appellant, in so far as ap-pellee is concerned, was a principal upon said note. Appellant alleges that at the time of the maturity of said note said Jones was unable to pay the same, and that plaintiff, at the request of said Jones and one Jerni-gan, another surety upon said note, and of appellant, for a valuable c...
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It is the contention of appellants that they were also entitled, under the evidence, to have a foreclosure of their chattel mortgage lien on the mule colt against all the parties, and that it was error to have denied it. The identity of the property purchased being conclusively shown, the question remaining between the parties was whether Lydie and Alexander took the property subject to the chatte...
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(after stating the facts as above). Appellant contends, in his first and second assignments of error, that the terms of the statute in which this proceeding was had do not authorize a contest to the appointment of the permanent guardian to be filed and made at the second term of the court after notices are served, and the contest proceedings are therefore void. The contest by appellee was made and...
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On June 30, 1911, the First National Bank of Pecos brought this suit against A. J. Rose and S. S. Cash, defendants, for the sum of $553, and sued out its writ of garnishment against C. M. Youngberg, the appellant.
Garnishee filed an answer, which did not comply with the statute, in that it did not deny having effects in his possession belonging to defendant Rose. Melton v. Lewis, 74 Tex. 412, 12 S...
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(after stating the facts as above). [1] One of the grounds of the motion for a new trial was the absence of appellant’s attorneys from the court at the time the case was tried. It was alleged in the motion that said attorneys resided in Dallas, 85 miles from Sulphur Springs, where the trial was had. The only reason assigned for the absence of the attorneys from the court was that they did not beli...
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With the consent of the court, appellant filed her petition (which is called plea in intervention) in the suit then pending in the district court of Reeves county, viz., Ira M. Cobe v. Toyah Valley Irrigation Company, and in which J. G. Love is the duly appointed and acting receiver of the defendant irrigation company, by which petition she prays that the order appointing said receiver be vacated ...
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The appeal is from a judgment probating as the last will of Mrs. Mary L. Mayers, deceased, an instrument by the terms of which she gave to her daughters Harriett C. Lake and appellant Virginia L. Thornton, $5 each; to her daughters Mary E. Linde and appellant Ellen D. Rapley, on conditions which need not be stated, an interest in certain land in Hot Springs, Ark.; to her daughter Mary L. Rogers, o...
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This is an action instituted in the justice court by appellees against appellant to recover $200, alleged to be due by way of commissions for negotiating a sale of a certain lot, house, and furniture in the city of Houston belonging to appellant, and which had been placed in the hands of ap-pellees for sale. The gravamen of the action is that after appellees had procured a purchaser on the terms ...
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Appellant vigorously insists that the court erred when he refused its request that he instruct the jury to find in its favor. In support of its contention appellant asserts that there was no testimony on which to base a finding: (1) That appellee's wife was injured by lightning as alleged; (2) or, if she was, that an "arrester," had it installed one to prevent lightning from being conducted over i...
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This is a suit by appellants against the appellees involving the right to the possession, use, and control of a synagogue building, schoolhouse, cemetery, and other property belonging to the Congregation Adath Yeshurun, a religious corporation organized under the laws of this state. Plaintiffs and defendants are all members of said religious organization. The petition alleges: That said corporatio...
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This is a companion case to one between the same parties, numbered 6,383 on the docket of this court, 156 S.W. 1149, and this day decided. For a statement of the nature of the litigation and the general issues involved, we refer to our opinion in cause No. 6,383, above mentioned.
After the order on December 14, 1912, from which the appeal in cause No. 6,383 was prosecuted, the judge of the court b...
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The two assignments present the one question of the right of appellant, under the timber deed in suit, to enter upon the land and cut and remove the timber therefrom after the lapse of five years from the date of the deed, without any contract or agreement of extension of time. Each party to the suit stands on the terms of the deed. A construction of the deed is involved. If the conveyance, from a...
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The assignment presents the point that appellant was entitled to have judgment against appellee Patterson for the value of *Page 1155
the cotton converted by him. The facts are admitted that appellee Patterson had seized and sold under execution two bales of cotton covered by a registered chattel mortgage to appellant, and appropriated the proceeds, less the rent, to his own benefit. And these fa...
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In July, 1912, appellee was employed by the appellant as a section hand, and while riding on a hand car en route to his work he fell and received personal injuries for which he sued and recovered a judgment for $500. The petition charges negligence generally, without specifying any particular acts. Among other defenses the appellant pleaded a settlement and a written release executed by appelle...
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This is a suit for debt, evidenced by notes executed by appellees in favor of appellant, and upon an open account for goods sold. Appellees plead discharge in bankruptcy. Appellant filed a supplemental petition, alleging that the debt was for goods obtained by fraudulent representations, and therefore was not affected by the discharge in bankruptcy, and prayed for judgment as in its original petit...
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In December, 1911, appellee lived at Llano, and was engaged in the business of buying and shipping poultry. About the middle of said month he contemplated shipping a car load of turkeys from Llano to New Orleans for the Christmas trade, but before buying turkeys he went to the express company, for the purpose of procuring a poultry car in which to ship them. According to his testimony he wanted a ...
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The appellees, J. R. Whitfield and wife, recovered a judgment against the appellant, Dobbs, in the justice court of Harrison county for the sum of $47.50. On appeal by Dobbs to the district court appel-lees again recovered judgment for the same amount. The facts disclosed by the record show that the suit is based upon’ a claim that Dobbs converted to his own use some furniture belonging to the ap...
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On the 31st day of August, 1912, the Beckville Independent School District filed this suit against J. A. Heermans and the General Bonding Casualty Insurance Company on a contractor's bond, seeking to recover the sum of $2,500 as damages. The petition alleges that in July, 1911, Heermans entered into a written contract with the plaintiff to furnish all the material and construct in the town of Beck...
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This was a suit in trespass to try title in the district court of Frio county. Appellant, who was plaintiff below, appealed from a judgment in favor of appellee. The appellant has failed to file any brief in the lower court or in this court. The appellees have filed their brief and ask for an affirmance of the judgment. We have examined the record, and find no fundamental errors requiring the r...
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Appellee instituted an action of trespass to try title to several tracts of land in Colorado county against appellant, and, on a trial by the court, was awarded judgment for all of the land, consisting of 1,977 acres of country land and two lots in the town of Cheetham.
The following, taken from the findings of fact of the district judge, are adopted by this court as its conclusions of fact: 0. S....
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This is a suit brought by D. B. Cherry against Hortie C. Cockburn and W. W. Holland, which is, in fact, a suit in trespass to try title, though it purports to be a suit to remove cloud from title. The land described by plaintiff as 32 1/3 acres, the same conveyed by Ann Gibbs to Charlotte Gibbs by deed dated August 30, 1885, being part of the Obedience Smith survey in Harris county, Tex.
Plaintiff...
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On motion for rehearing. Motion overruled.
For former opinion, see 152 S.W. 185.
On December 14, 1912, we overruled appellees' motion for a rehearing, but on January 11th thereafter we set aside that order upon the oral suggestion of appellees' counsel that the question of law upon which we had reversed the case had very recently been decided contrary to our holding by the Supreme Court of the Uni...
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This is a suit-for $2,800,-in-stituted by appellant against the partnership of Moore, Bryan & Perry, composed of A. A. Moore, W. Joel Bryan, -and M. S. Perry, alleged to be due by virtue of a contract, whereby appellant agreed to furnish water for irrigation purposes, and.appellees agreed to pay for the same at the rate of $7 an acre for all land ree’eiving the water. Appellees Moore, Bryan & P...
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This is a suit to recover the value of two-fifths of the rice grown upon 163.6 acres of land, based upon a contract of sale and purchase made by and between H. S. Judson and Colonial Land Company as vendors and appellees as vendees, whereby it was agreed that the rice claimed should be given as the first payment on the purchase money of said land. Appellees answered and filed a cross-action for da...
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On March 21, 1906, defendant in error Pederson executed and delivered to M. Willis his promissory note for $197.66, providing for interest and attorney's fees, payable at Dalhart, Tex., nine months after date, and on the same day executed and delivered to R. P. Hutton, as trustee, a deed in trust of certain real estate, situated in the town of Dalhart, to secure the payment of said note. Thereafte...
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This suit was brought by Sadie A. Young and husband and Mary Goshom, a feme sole, against D. H. Bras-field, G. M. Magill, and J. W. Magill to recover $3,625, with interest and attorney’s fees, upon a note made by Brasfield to the Magills, and by them indorsed and transferred to the plaintiffs as collateral security for two notes held, respectively, by the two plaintiffs, Sadie A. Young and Mary Go...
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The appellant’s statement of the case is adopted. “Appellants, defendants below, were sued by the plaintiff on November 9, 1911, on a promissory note for $1,700, as is shown by the petition. Defendants answered by general denial and special answer alleging an extension. On January 11, 1912, the case was heard before the court, who gave judgment for the plaintiff against defendants as prayed for.” ...
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This case is identical in all things, except parties plaintiff and amount involved, with the case of G. M. J. W. Magill v. Sadie A. Young, 153 S.W. 184, decided to-day by this court, and for the reasons assigned in that case this cause will be affirmed. The appellant has filed a motion suggesting delay and asking for 10 per cent. damages. The motion is granted. There was no merit in the defense, ...
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The appellees Mrs. Laura Suitor and Hunter Suitor, in their own right, and Laura Suitor as next friend for Myrtle, Nora, Ruby, Johnnie, and Mallory Suitor, minors, as surviving wife and children of J. J. Suitor, brought suit in the district court of Potter county against the appellant, the Pecos Northern Texas Railway Company, and the Southern Kansas Railway Company of Texas for damages alleged t...
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This suit was instituted by the appellee, Mrs. Ellen Himebaugh, on March 10, 1911, against H. J. C. Reed, E. W. H. Miller, C. F. Miller, David Fausch, and Frank A. Baxter to establish and fix a trust on certain property in Dallam county. The petition is as follows:
"(1) Plaintiff says that she resides in Ringold county, Iowa, and has resided in said county for the last 40 years, save and except a ...
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Appellant, the city of Brenham, sued appellees to enjoin them from continuing the construction of a building within the fire limits of the city of Brenham, *346and-.to. have them remove and take down that portion of said building which had been erected by them'. It was alleged that said building was being constructed of material not fireproof, using wood and galvanized iron for walls/ of the same,...
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The appellant, the First National Bank of Canyon, brought suit against M. G. Abernathy and Jasper N. Haney in the district court of Randall county, which was brought upon change of venue to the district court of Potter county, Tex. The suit was based upon a check issued on the 13th day of December, 1909, by M. G. Abernathy and payable to Jasper N. Haney, and by him indorsed to appellant bank. The ...
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This is an action by Ella Hansen to recover $2,000, with interest, from the Supreme Ruling of the Fraternal Mystic Circle, a fraternal beneficiary association, incorporated under the laws of Pennsylvania, and doing a fraternal life insurance business in Texas under a permit from this state. The amount demanded was claimed to be due upon a certificate of insurance held by Julius Hansen, deceased hu...
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The statement of the nature of the case, taken from appellant's brief, is:
"This is an action of trespass to try title for the land described in plaintiff's petition, and winding up with a declaration that the plaintiff `has had and held peaceable and adverse possession of the land hereinafter described, cultivating, using, and enjoying the *Page 354
same, and paying the taxes thereon, and claimi...
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Appellee, plaintiff in the lower court, sued the appellant railway company, alleging that his wife was a passenger on one of its trains, and that in approaching the station of Claude, her destination, the employés of the train failed to announce the means of exit for the purpose of disembarking from said train at said station, and to have a sufficient number of doors conveniently open near the pla...
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This was a suit in trespass to try title and for partition of an undivided one-sixth interest in a 10-acre tract of land in the city of Houston. Upon trial before the court judgment was rendered in favor of the defendants, from which this appeal is prosecuted. Findings of fact and conclusions of law were filed by the trial court as follows:
"Findings of Fact.
"(1) The ...
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Appellants bring this suit against the commissioners' court of Pecos county and the individual members thereof, John M. Odom, county judge, Mart Adams, R. W. Mussey, J. M. Holmes, and Tom Cope, commissioners, in substance alleging that plaintiffs were resident, property-owning, and tax-paying citizens of Pecos county; that the county had a first-class, commodious courthouse, built of stone, situat...
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The appellee, the plaintiff in the county court, was the tenant of appellant, cultivating the latter's land under a contract for a one-half share in the crop, and alleged that, before the expiration of the tenancy, the appellant, the defendant in the trial court, in disregard of the contract, by force and threats, willfully and intentionally dispossessed and ejected him from the premises, and comp...
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This is a suit by Albert Reitzer against the Irrigation Company, Thomas B. Palfrey, C. H. Kearney, White Caldwell, Willis Ranney, Frank Carson, Fagan, Elwood, Terley, Kelley, Neil Henson, C. Lamadoux, and "Crusher Bill" to compel them to open the dam on the Medina river, in Medina county, in a way to cause the waters accumulated and to accumulate above it to flow rapidly through it, so "that there...
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Suit by appellee for damages to lots 3, 4, 5, and 7 in block 4, in Merkel's addition to the city of Houston. It was alleged that she was the owner of the premises, and that same faced on Hutcheson street, a distance of 150 feet, and such frontage was the most valuable frontage of the lots; that there was no street on the west and south sides of the property, and on the north side there was a stree...
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This is a companion case to City of Houston v. Merkel, 153 S.W. 385, this day decided, and the cause is reversed for error in the charge of the court upon the measure of damage. Appellant presents here the same assignments as in the Merkel Case, and we refer to our opinion in this latter case for expression of our views upon the same. In this case, however, there are some additional assignments, w...
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This suit was instituted by appellant against Frio county for injunction to prevent the county from opening a second-class road through appellant's land. A temporary writ was issued, but upon trial before a jury the court gave peremptory instruction for the defendant, the injunction was dissolved, and the road ordered opened. There is no controversy as to the form or sufficiency of the petition, o...
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This suit was instituted by the defendant in error, Earnest Smith, a minor, by and through his father, W. W. Smith, as next friend, to recover damages for personal injuries caused by the negligence of the employes of the plaintiff in error in the handling of a freight train at a public street crossing in the city of Greenville, whereby plaintiff’s team was caused to take fright and run away, thro...
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On June 2, 1910, the appellant, Kingman-Texas Implement Company, recovered a judgment in one of the district courts of Dallas county against A. D. Davis and E. P. Hutchens, individually, and as a firm of Davis Hutchens, for the sum of $4,399.32; and on August 4, 1910, appellant sued out a writ of garnishment against the Herring National Bank of Vernon, Wilbarger county, requiring it to answer as ...
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On or about the 21st day of August, 1911, Terry Sirman, the minor son of the appellee, was injured by an explosion of gasoline vapor while attempting to operate a gasoline engine belanging to the appellant, and used by it for pumping water into its railroad tank. Sirman died within a few hours afterwards from the effects of his injuries. The appellee, his mother, brings this suit to recover damage...
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This is a suit instituted by appellee against appellant to set aside judgment rendered against the former in favor of the latter for the sum of $1,000, to enjoin any action under said judgment, and to obtain a rehearing and new trial in the cause. The court granted a temporary injunction restraining any execution under the original judgment. Appellant filed general and special exceptions, pleaded ...
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This suit was brought by the appellee to recover damages for personal injuries inflicted upon himself, wife and child, and injury done to his buggy through the negligence of appellant. The petition alleges, in substance, that on or about the 17th day of September, 1910, the plaintiff and his wife and child were driving in an easterly direction along East Side avenue, a street in the city of Dalla...
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(after stating the facts as above). (1] The second clause of the eleventh paragraph of the court’s charge is objected to as erroneous, upon the ground that it did not make a recovery, occasioned by the fright of the team while in the act of crossing the railroad, dependent upon the exercise of ordinary care by appellee. The be-ginhing portion of the paragraph required the jury to find, before a...
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Appellee, a resident of the state of Oklahoma, instituted this suit against the appellant, alleging that defendant is incorporated under the laws of the state of Missouri, and operates a line of railway in *Page 412
Oklahoma, Arkansas, and Grayson county, Tex., and that plaintiff was in the employ of defendant as a brakeman, and while in the performance of his duties was through the negligence of...
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Appellee filed suit in justice court for the recovery of double the amount of certain payments alleged to have been made as usurious interest. Upon appeal to county court, judgment was rendered against appellant in the sum of $34.52. Appellant excepted specially to certain of the alleged payments upon the ground that the same appear to have been paid more than two years prior to the filing of the...
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On motion for rehearing. Motion refused.
For former opinion, see 152 S.W. 658.
This suit must be treated as one instituted by Linden, the plaintiff in the court below, exclusively for the purpose of restraining Mrs. Withers from enforcing the judgment referred to in the pleadings. Cantrell, the constable, was made a party only to prevent a sale under the execution which had been placed in his hand...
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This is a suit by the appel-lees against the appellant, and other parties who do not appeal, to recover a tract of land and damages for removing standing timber therefrom. There is only one assignment of error in appellant’s brief, and that is based upon a bill of exceptions filed after the expiration of the time fixed by an order of the court extending the time allowed by the statute. No assig...
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On the morning of November 28, 1910, at about 3 o’clock, E. W. Baey was struck and killed by appellant’s passenger train at the depot in the town of Timp-son, Tex. This suit was filed by his widow and children, who recovered in the court below a judgment for $2,500 as damages. The evidence shows that Lacy had gone to the depot, upon this occasion, for the purpose of taking the early morning train,...
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This is a suit instituted by appellant against appellees, who reside in Guadalupe county, to recover damages alleged to have accrued from a failure to deliver to appellant corn of the quantity and grade contracted by appellees to be delivered. Appellees filed their plea of privilege, which was sustained by the court, and the cause was transferred to the county court of Guadalupe for trial.
The con...
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This is an appeal from an order made in vacation by Hon. W. B. Hopkins, district judge of the Twenty-Eighth judicial district of Texas, refusing to grant, upon sworn petition by appellants, who are residents and qualified voters of Dunn county, and owners of real and personal property situated therein, a temporary injunction restraining appellees, O. G. Allen, N.E. Martinez, J. C. Wall, and H. D. ...
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H. C. Blassengame instituted this suit against the State Division of the Lone Star Insurance Union of Paris, Tex., on a certificate of insurance upon the life of Mrs. Lizzie Blassengame, wife of the plaintiff, and on findings of a jury on special issues submitted to them recovered a judgment for $997.80. The defendant is a fraternal beneficiary insurance company, incorporated under the laws of ...
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Appellee sued appellant in the court below for $500 for services as a real estate agent in procuring one Hunt to sell appellant a tract of land on terms satisfactory to appellant, and secured verdict and judgment. Appellee testified that appellant agreed to pay him $500 if he could induce Hunt to convey the land on terms acceptable to appellant; that he did so, and, that Hunt did convey the land. ...
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As originally instituted this was an action in trespass to try title by Oliver H. Deggs against J. IL. Loving and his wife, to recover the O. H. Deggs survey of 138 acres in Polk county. Defendants disclaimed as to all of the land sued for except a tract of 22 acres, .which plaintiff claims is a part of the O. H. Deggs survey, which he owns, lying, according to his claim, between the north line o...
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Action on an insurance policy on the life of Nellie Fawcett, brought by her husband, W. A. Fawcett. The company plead that the policy was procured by false or fraudulent representations, in that she (Nellie Fawcett) represented at the time the policy was issued she was in sound health, when in fact she had consumption, and therefore the policy was void. A trial resulted in favor of W. A. Fawcett,...
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We take the following statement from appellant's brief, to wit: "This was a suit for damages for alleged wrongful ejection of appellee from appellant's train at Temple, Tex., on the 15th of August, 1911. Appellee alleged in his petition that he became a passenger on the appellant's train at Taylor, Tex., for the purpose of being carried from Taylor to Dallas, Tex., having already provided himself ...
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Appellee O. L. Northcross filed this suit in trespass to try title against T. W. McDowell, to recover a storehouse and lot, situated in the town of Dodsonville, Collingsworth county. Plaintiff alleges that on the 15th day of November, 1912, he was lawfully seized of lots Nos. 27 and 28, in block 40, in said town, on which day the appellant entered upon the premises and ejected him therefrom, to hi...
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Appellees, parents of Guy Nelson, sued appellant in the court below for damages for negligently killing said Nelson while entering the elevator of appellant's building in Dallas, and recovered verdict and judgment for $7,500, from which this appeal is taken.
The negligence alleged in the petition on the part of appellant to have brought about the death of Nelson was in permitting an operator witho...
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H. Y. Field, in 1895, platted what is known as "Ross Avenue Addition" to the city of Dallas, Tex., and filed a map of said addition for record in the office of the county clerk of Dallas county. A copy of this map is included in the statement of facts, and it appears therefrom that the land in said addition was laid off into blocks and lots, and certain streets and alleys designated thereon. Among...
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J. E. Long, the appellant in this court, and the father of Aline Long, a minor female child, of the age of about 22 months, at the time of the trial in the lower court, sought to recover the custody of said child by writ of habeas corpus from the appellees, S. B Smith and wife, the maternal grand-parents, and, upon the hearing before the trial court, the temporary custody of the infant was awarded...
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This suit was instituted by John C. Walker, sole surviving executor under the will of Charles Nolan, deceased, against James O. Kernole, J. C. Kernole, Mrs. Willie D. Wilson, and her husband, Ben C. Wilson, Charles H. Knoblaugh, minor, and Charles F. Knoblaugh, guardian of said minor, Annie L. Lewis, a widow, and Wilhelmina C. Nolan, the widow of Charles Nolan, praying for a construction of the wi...
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Appellee filed this suit against H. J. Hammel and G. M. Counts on the 31st day of July, 1912, for the purpose of rescinding a trade, and prayed in the alternative for damages.
In an amended petition, plaintiff alleged in substance that appellee J. T. Benton entered into a written contract with H. J. Hammel and G. M. Counts, whereby plaintiff agreed to convey to the defendants section 85, block M –...
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Appellant filed her petition August 16, 1912, to enjoin a judgment rendered in the county court of Ward county, Tex., May 3, 1910. Appellee filed his exception to the said petition because it showed upon its face that the judgment had been rendered more than one year prior to the filing of the suit. The court below, in term time, sustained the exception on demurrer *Page 367
and dismissed the pet...
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Plaintiff in error was defendant in an action of trespass to try title pending in the district court of Harris county, in which an injunction had been issued restraining him from cutting trees and otherwise trespassing upon the premises in controversy. Pending the final determination of that suit, the defendants in error and their attorney instituted contempt proceedings against the plaintiff in e...
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Appellee instituted this suit against appellant to foreclose a lien on the latter's land; said lien arising from appellee having, at the instance and request of appellant, dug a well on said land, for which appellant failed and refused to pay. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee.
Assignments of error from 1 to 6, inclusive, complain of the refusa...
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Appellee sued appellant for $350 commissions for the sale of land, and recovered judgment for that amount, in a trial without a jury. It was alleged, in substance, that appellant had turned over to appellee, who was a real estate agent, certain maps and papers showing the land for sale; that she spoke to several persons about the land, looking to a sale thereof; that she sent the names of these...
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Appellee sued appellant upon two promissory notes for $684 each, both dated April 12, 1911, executed by appellant, payable to the Foote-Roloff Machinery Company, or bearer, alleging that said notes had been transferred before their maturity for a valuable consideration to the Sheffield Gas Power Company of Kansas City, Mo., and that afterwards, before the maturity of either of said notes, the said...
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The appellant alleges: That R. R. Skaggs and his wife, Amanda J. Skaggs, owned about 180 acres of land in Karnes county, being lots 25 and 26 of the Louis Manchaca original grant, which was con'-munity property. That Skaggs died and left a will, dated December 6, 1894, in which he made disposition of the entire personal and real estate and therein set apart to his wife the east or northeast half ...
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On the early morning of June 12, 1910, the dead body of Ed Massey was found lying on or near the track of the I. G. N. Railway, just a short distance south of Jones' Switch, a flag station on said railway, with his head split open; and this action was brought by appellant, his surviving widow, to recover damages therefor.
The petition is in two counts; the first seeking to recover on the ground t...
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This suit was brought by the appellant Alta Kirkland joined by her husband, against appellee George C. Matthews and wife for the custody of four minor children of appellee, viz., George Cade Matthews, Margaret E. Matthews, Claude P. Matthews, and Mary Julia Matthews. Appellant alleged that she was the aunt of the minors, and that the mother of the minors is dead, and that just prior to her death i...
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Appellee, while driving upon the public road, had a collision with an automobile owned by appellant and driven by one Francisco Marcias. The automobile was in a bad state of repair, and Wells Lit-tlefield, agent of appellant, had delivered the automobile to Marcias, who was driving the same to the city of El Paso, where it was to be repaired.
The issue is raised as to whether or not Marcias was th...
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This is a suit in trespass to try title, filed by H. T. D. Wilson against J. Edgar Lafferty on April 10, 1910, for the following tract of land in Harris county, Tex.: Ten acres out of lot No. 8 of the subdivision of the Harris and Wilson two-league grant on the north side of Buffalo bayou, west corner of the Gagne tract of land in said lot 8; thence north 660 feet to corner; thence east 660 feet t...
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This suit was instituted by Hill against the appellant for damages alleged to have been sustained by reason of delay in delivery of a telegram delivered to appellant for transmission and delivery to appellee at Ft. Worth, Tex. Upon trial before a jury, verdict was rendered in appellee's favor for the sum of $1,500, and judgment thereon was accordingly rendered.
An inspection of the assignments of ...
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Appellees W. R. Peters and C. W. Bowman instituted this suit against the appellant, Ed Hales, and A. Lindsey, alleging in their original petition, among other things, in substance, that a short time prior to August 22, 1907, Emma Lindsey, wife of A. Lindsey, died, and at the time of her death she and her surviving husband owned community property of the aggregate value of $2,545, of which $1,800 w...
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This suit was brought by the J. R. Watkins Medical Company, a private corporation, in the district court of De Witt county, Tex., against W. E. Johnson, as principal debtor, and William Thomas, Chas. G. Breeden, J. K. Irwin, and William Lienhard, as sureties, for a balance due and owing for medicines, extracts, etc., furnished by plaintiff to defendant Johnson *Page 395
on a written contract betw...
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This was an action in the district court of Harris county, Tex., by Claire E. Allen, joined by her husband, A. C. Allen, and Margaret E. Allen, by plea adopting allegations of petition against Norman G. Kittrell, Jr. The petition alleged that said Kittrell was receiver of the estate of Margaret E. and A. C. Allen in a receivership *Page 398
in said court, being cause 46,812. That, as such receive...
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This suit was instituted by J. C. Bryant against the Atchison, Topeka Santa Fé Railway Company for damages alleged to have been sustained by reason of personal injuries inflicted upon him while in the employment of said company. Upon trial before a jury, verdict was rendered in his favor assessing his damages in the sum of $5,000, and judgment was rendered accordingly.
Rule 25 for the government o...
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This suit was brought against appellee by J. E. French and wife to recover damages on account of the death of John W. French, Jr., their son, who fell and was killed, while in the employ of appellee, on October 28, 1911. It was alleged that the deceased was under the direction of one of defendant's foremen and vice principal, Adrian Hall, and was engaged in repairing and connecting wires used by t...
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This suit was brought by appellee to recover of appellant on a fire insurance policy in favor of James Day, and which policy was transferred by Day to appellee. The property covered was a dwelling which was totally destroyed. Plaintiff in his petition, alleged that on "the 24th day of April, A.D. 1911, by a notice in writing plaintiff duly notified the defendants and their agent at Dallas, Tex., o...
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On January 3, 1910, John P. Davidson instituted suit in the county court of Nacogdoches county against R. H. Lee to recover money alleged to be due on a contract for rent, and on February 5, 1910, recovered a judgment against Lee for $480, with foreclosure of lien. By a sale of property upon which the lien was foreclosed, $118.55 was realized and credited on the judgment. The balance is still unsa...
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On Motion for Rehearing. Appellant, with reference to its assignment complaining of a denial of a trial by a jury, insists that this court misconstrued the record as to the fact of his negligence, in not filing an answer within the time prescribed by law, and which we held was a condition contributing to the action of the trial court in discharging the jury, and further insists that his answer was...
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Appellant, plaintiff below, was a "log buncher" for appellee. In his petition appellant alleged that his duty as such log buncher "consisted of dragging logs into bunches for the convenience of defendant's (appellee's) carts and wagons in loading said logs; that he bunched said logs by engaging them at one end with a tool known as `skidding tongs,' which was fastened to a pull chain by which means...
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This is a suit for damages growing out of personal injuries inflicted upon appellee through the negligence of appellant. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $12,650. The facts indicate clearly that appellee was injured through the negligence of appellant. The facts in this case are that on the night of January 7, 1912, appellee, who was ridin...
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Page 147
The plaintiffs in this action, W. E. Waggoner and eight others, allege that they are stockholders of the Favorite Oil Company of Beaumont
Cleburne, that on *Page 424
May 6, 1904, said corporation became defunct under and by virtue of the laws of the state of Texas, by reason of having failed to pay the franchise tax for which it was liable, and was so declared by the Secretary of State, and that...
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Appellee recovered verdict and judgment for $5,500 against appellant for damages for personal injuries received while in the employ of appellant and as a result of its alleged negligence, and from which judgment this appeal is taken.
The complaint alleges that appellee was engaged by appellant, with other "section hands," to assist in extinguishing a fire which was burning cotton stored upon appel...
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When the record was first before us, we were of the opinion that the judgment of the court below should have been in favor of appellant instead of in favor of appellees, but concluded we were without power on any of the assignments carried into appellant’s brief to grant the relief he was entitled to. Since the motion was filed, we have again carefully considered the assignments, and have conclud...
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By the sixteenth assignment, first considered, error is predicated upon the portion of the *Page 433
charge authorizing a verdict for appellees upon the finding by the jury upon the evidence: (1) That there was a denial and repudiation by W. S. Nicholson of the contract of sale from H. A. Garrison and wife to him as made in 1883; and (2) that Nicholson notified Garrison that he denied and repudia...
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The appellants challenge the right of appellee to judgment for the land sued for, except the 30 acres disclaimed by them, upon the proposition that: "When a party adversely occupies a tract of land in excess of 160 acres for the required period of time to acquire title to 160 acres thereof under the terms of the statute of ten years' limitation, such party then becomes a tenant in common with the ...
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The first call in the deed offered in evidence is for the beginning point to be "at Driskell survey a stake." The second call is "thence east with said survey 1284 varas a stake, being Driskell's southwest corner." The first call is very imperfect, from not giving a more certain and distinct starting corner on the Driskell survey. The second call does distinctly and with certainty locate and fix t...
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Appellant, S.E. Lee, sued appellee, H. Leslie Moore, for malpractice, claiming damages for injuries to his wife while confined in childbirth on account of alleged negligence upon the part of appellee, and also alleged negligence and want of professional skill upon the part of one Dr. A. D. Hardin, acting as appellee's agent or *Page 438
substitute. Appellee was a regular practicing physician, and...
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Appellee sued appellant on a debt for $400, alleging that said debt was due prior to appellant being adjudged a bankrupt, but subsequent to such adjudication and prior to his discharge appellant made a new promise, in writing, to pay said debt, thereby waiving his discharge in bankruptcy. Appellant excepted to the plea setting up the written promise on the ground that the writing relied upon was n...
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In most of its features, with the exception of questions growing out of the sequestration of the property involved by defendant Robinson and the replevy thereof by plaintiffs, and the matters of rents and damages claimed by defendant and claim for improvements made by plaintiffs, this case is identical in its facts with the case of Childress et al. v. Robinson et al., 161 S.W. 78, decided by this ...
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One Edmonds, claiming appellant was indebted to him in the sum of $79.65, sued appellant in a justice court and recovered judgment against him for that sum. Having given notice of an appeal to the county court, appellant, within the time allowed by law, filed with appellee, the justice of the peace who rendered the judgment, his affidavit, in lieu of an appeal bond, that he was unable to pay the c...
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This was a suit for damages for false imprisonment, brought by appellee against appellant, in which judgment was rendered in favor of the former against the latter for the sum of $1,000.
Appellant, a corporation, owned and operated a store in the city of Texarkana, where it kept for sale, displayed on open counters, accessible to persons who might wish to examine them, jewelry, toys, music, glassw...
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This is a suit instituted by the appellee to recover the sum of $700 alleged to be due upon a policy of insurance issued on the life of her husband, Allen B. Sealey. The appellant is a fraternal and mutual benefit association composed of subordinate lodges and a supreme lodge called the National Council. It has a subordinate lodge, or local council, at Greenville, Tex. In January, 1911, A. B. Seal...
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This is an action by S. C. Burk, the appellee, to recover of the appellant damages for loss of the services of his minor son, Willard Burk, and for expenses incurred in caring for his said son, occasioned by personal injuries inflicted upon him through the alleged negligence of appellant's servants. The case was before this court on a former appeal. 150 S.W. 748. In the amended petition, upon whic...
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Appellant's road at a point in Greenville runs east and west and on its way crosses King street, a public highway, which runs north and south. South of the railroad and west of King street is a seed-house and gin, said structures being 55 feet south of the railway. At a point east of King street and on the south side of its track appellant has built, for the accommodation of the owners of the gin,...
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This action was brought in the district court of Hale county, by the Citizens' National Bank of Plainview, against J. J. Rushing, W. B. Rushing, and B. E. Rushing, as individuals and as composing the firm the Rushing Land Company, and also against J. E. Rushing and E. B. Hughes. The last-named defendant, being trustee in two deeds of trust, disclaimed. The Rushings impleaded J. B. Posey, the first...
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(after stating the facts as above). The first assignment predicates error upon the refusal of the court to give a requested peremptory charge to return a verdict for appellant. The insistence for error is that there is a failure of any evidence to show that appellee’s injuries arose from coming in contact with and stumbling over clinkers as alleged. At the very time of his injuries, according t...
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Appellant instituted an action of trespass to try title to a portion of lot No. 13, New City, block No. 2,877, on Barbe street in the city of San Antonio, against Joseph Juenger and wife, Thomas B. Went and wife, *Page 475
J. H. Frost, and B. E. Witte. Appellant alleged that he bought lot 13 aforesaid, of which the land in question is a part, from Went and wife; that he executed and delivered to ...
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The nature of this suit, as stated by the appellee in his brief, is as follows: "Plaintiff, Harry Zier, sued defendants, T. F. Loftus and Frank McKenzie, by filing his original petition on April 20, 1911, and for trial pleading used his second amended original petition. This suit is for damages for the procuring of a lease contract, wherein T. F. Loftus was lessor and Frank McKenzie and Harry Zier...
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This is an action brought by the appellee to recover of appellant damages for personal injuries. The defenses pleaded were a general denial, assumed risk, and that appellee's injuries, if any, were proximately caused and contributed to by appellee's own negligence and want of ordinary care and by that of his fellow servants. The case was tried before the court and a jury, and the *Page 480
trial ...
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This is an action in trespass to try title, brought by appellant against C. F. Burkhardt, W. H. Jackson, D. B. Coleman, and'W. M. Stewart, in the district court of Dallam county, for the recovery of a certain section of land. The original petition was filed the 12th day of August, 1911. On the 5th day of August, 1912, the appellees answered by general denial and a plea of not guilty. There was a t...
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R. N. Wood and his wife, S. M. Wood, instituted suit against Mettle *Page 489
McIndoo and W. C. McIndoo to cancel a certain deed to 25 acres of land, near the town of Alice, Jim Wells county, which, it was alleged, was obtained by fraud and deception on the part of appellants in misrepresenting the value of certain groceries, and that there were no debts against them. The cause was tried by jury ...
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The appellants, C. C. Taber and wife, Bertie Taber, sued Charles Eyler, W. M. Burwell, and N.E. Hord, for breach of a lease contract. The allegation of the petition is, in effect, that on the 11th day of November, 1910, appellants leased to Charles Eyler, lot No. 11, block No. 32, Glidden Sanborn addition to the city of Amarillo, of of the dimensions 30 × 140 feet, with a certain two-story buildi...
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Appellants, who were plaintiffs in the court below, filed this suit in the district court of Denton county on the 26th day of June, 1911; the original petition alleging in substance as follows: Plaintiffs for cause of action represent that each and all of the plaintiffs and defendants, except the defendant Ann Hilgers, are the children of M. Hilgers, deceased, and that Ann Hilgers is the surviving...
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We adopt the following statement of the nature and result of the suit from appellant's brief:
"This suit was filed in the district court of Gray county on April 7, 1911, by W. L. Oliver against the Chicago, Rock Island Gulf Railway Company to recover damages on the allegations that on April 18, 1909, he was employed by the defendant company as foreman of its water service along the line of its ro...
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The Amarillo National Bank brought suit against appellee William Harrell on one note for $4,053.30, dated February 1, 1909, with 10 per cent. interest from date and the usual clause for 10 per cent. attorney's fees, upon which a credit was made March 29, 1909, for the sum of $2,000, and also sued on a note for $300, dated the 22d day of March, 1909, due July 22, 1909, with interest at the rate of ...
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Appellees instituted this suit in the county court of Wilbarger county against J. D. Sparks, Bismark Houssels, and the Houssels Cotton Company. Plaintiffs alleged that defendant Sparks executed and delivered to them the note sued upon in the sum of $250 and at the same time executed a chattel mortgage upon certain cotton described therein, as follows: "Located in Wilbarger county, Texas, two miles...
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On the 17th day of January, 1910, C. T. Wright procured from appellee J. L. Rutherford a deed to the N. V. Delgado survey in Titus county, and in payment therefor delivered to Rutherford two vendor's lien notes for $5,980 each, executed January 5, 1910, by G. P. Holford to C. C. Hutcherson. These notes purport to have been given in part payment for certain land in El Paso county, known as a part o...
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Appellant, as executor of the will of his wife, filed this suit against appellee to quiet the title to section 30, block C – 6, state school lands in Donley county. William Allen, as an actual settler, became the purchaser of this land from the state at $2 per acre October 15, 1885. By deed dated January 23, 1886, Allen and wife conveyed the land to William Lomas for a recited consideration of $40...
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Appellee was engaged in the mercantile business in the town of Midland and on March 24, 1910, entered into a contract with appellant for the purchase and sale of certain supplies. On March 1, 1911, appellee disposed of his business to the Midland Mercantile Company. This suit was by appellant to recover a balance due upon account for supplies delivered to the Midland Mercantile Company after the d...
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This case was passed upon by us during the last term of court, and the judgment reformed, taxing all costs against appellees. Motions for rehearing were filed by both parties, and were overruled. A writ of error was applied for to the Supreme Court by appellants, and denied. During vacation appellees filed a motion to retax costs, alleging that various matters were improperly embodied in the trans...
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8224 Writ of error denied by Supreme Court.
This suit was brought by appellee bank against W. S. Heaton, George Bury, and R. Vickery, upon a promissory note, dated May 15, 1908, due 90 days after date, in the sum of $2,500, stipulating for 10 per cent. interest and 10 per cent. attorney's fees. The note sued upon was made an exhibit to the petition, and was executed by R. Vickery, "as security." D...
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This suit was filed by Chas. E. Ford and wife and Chas. Morris and wife against the Sutherland Springs Land Town Company, a corporation, and J. L. Kerr, I. T. Pryor, M. H. Townsend, Semp Russ, A. D. Powers, A. L. Matlock, J. H. Burton, W. E. Nelson, J. C. Nelson, H. P. Nelson, and H. A. Speer. It was alleged that the Sutherland Springs Development Company, a corporation not a party to this suit, ...
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On a former day of this court we dismissed the case because the transcript and appeal bond from the justice and county courts was not in the transcript in this case. Appellant, upon motion for rehearing and by petition for writ of certiorari, brought up duly certified copy of the transcript and appeal bond, and upon hearing we granted the motion for rehearing and ordered the appeal bond and transc...
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This suit for damages for personal injuries was instituted in the district court of Donley county by appellee against appellant railway company, alleging that the personal injuries were sustained by plaintiff's daughter, Halys Wininger, April 25, 1909.
In his first amended original petition, appellee alleges that he lived in the northeast portion of the city of Clarendon; that appellant's line of ...
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This cause arose as follows: On May 18, 1910, J. J. Dillard was the owner of block 236, in the town of Lubbock, Lubbock county, Tex., and upon said date conveyed the same by deed to N. Frank Faulk, said deed having been recorded on June 18, 1910; as a part of the consideration for the conveyance of this land, Faulk executed and delivered to Dillard three promissory vendor lien notes for the sum of...
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This was an action for commission, claimed to have been earned by appellant as a real estate broker for finding a purchaser for a piece of real estate belonging to the appellee.
Conclusions of Fact.
Appellant, who was engaged in the real estate business in San Antonio, approached appellee with reference to the sale of the *Page 892
property in question and asked at what ...
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On April 9, 1909, Emma A. Hudson brought this suit against Jeff Cochran, W. S. Dixon, E. B. Smith, and William Waugh to recover the value of timber cut and removed from a tract of 194 acres of land, part of the Robert Sherman survey in Liberty county, hereinafter referred to as the Emma Hudson tract Smith died pending the suit, and Annie J. Smith, J. D. Langham, and Ben Campbell, his legal represe...
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Stella Moore, appellant, brought this suit against appellees, Early B. Moore and Ivory Moore, for the recovery of a one-half interest in a tract of land described in her petition and praying for partition. A trial before the court without a jury resulted in a judgment for appellees, and appellant appeals. *Page 897
Appellant, by her first assignment of error, complains that the court erred in fai...
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This suit was originally instituted in the district court of Hemphill county by C. S. Seiber against appellant and one A. M. Newman to recover upon a promissory note, dated January 13, 1909, in the sum of $2,950, made payable to plaintiff. Plaintiff's allegation is that the note was the obligation of appellant company, and that its payment was guaranteed by the said A. M. Newman. On a former appea...
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This suit was brought by appellee against appellant for reinstatement of his license as a retail liquor dealer, which had been forfeited by appellant under the provisions of articles 7436 to 7442, inclusive, of the Revised Statutes of this state. Upon the trial in the court below the evidence taken by deposition under the commission issued by the appellant comptroller, and upon which he acted in a...
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This suit was brought by appellee against the appellant for reinstatement of his liquor dealer's license, which had been adjudged forfeited by the appellant in proceedings instituted by him under the provisions of articles 7436 to 7442, inclusive, of the Revised Statutes of this state.
By agreement of parties the evidence taken by deposition under the commission issued by the comptroller, and upon...
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A. P. Harris sued the defendants, Galveston, Harrisburg & San Antonio Railway Company and the Texas &
*908
New Orleans Railroad Company, for damages for personal injuries sustained by bim, and recovered a judgment on the verdict of a jury for $27,500. Prom this judgment the defendants, after their motion for a new trial had been overruled, have appealed.
The only assignment of...
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This is an action by A. L. Lyons against the Yellow Pine Paper Mill Company to recover damages for personal injuries received by him while at work in defendant's paper mill. A trial with a jury resulted in a verdict and judgment in favor of plaintiff for $13,500. Its motion for a new trial having been overruled, the defendant appeals.
It was alleged in the petition that the accident through which ...
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Murphy Stirling, not quite 14 years of age, was employed by Mack Clapp, foreman of the Bettis Manufacturing Company, as "clean-up boy" in the manufacturing establishment of defendant. His duties were to clean up the trash and pieces of lumber around the saws and other machinery on the second floor. On the second day after he was put to work at this employment, while he was trying to rip a piece of...
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8224 Writ of error dismissed by Supreme Court.
This appeal is from a judgment of the district court of Chambers county refusing to admit to probate the will of J. J. Mayes, deceased, which was offered for probate by appellant, G. C. Mayes, the executor named in said will, and its probate contested by the appellees, W. F. Mayes, Rachel Davis, joined by her husband, G. C. Davis, and Woodson Mayes.
T...
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This is an action in trespass to try title by W. J. Gore against the *Page 925
Houston Oil Company of Texas to recover 160 acres of land out of the Rafferty league in Hardin county. Plaintiff claimed title under the ten-year statute of limitation. Defendant pleaded not guilty and title under the statute of limitation of three years. Upon the trial without a jury, the court rendered judgment for p...
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This is an action in trespass to try title by W. R. Blain against Jesse R. Stewart to recover one acre of land. Stewart pleaded not guilty and the statute of limitations of three, five, and ten years. He further alleged that he had bought the land from the county judge and commissioners of Jefferson county and the school trustees of school district No. 6, who had warranted the title, and he asked ...
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This is an action of trespass to try title and for damages brought by the appellees against the appellants. The land in controversy is a tract of 220 acres in Hardin county patented to Corbet Stevens. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs against the defendants Nona Mills Company and Wm. Cameron Co. for the title and possession of the la...
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The appellee, M. S. Acuff, brought this suit against appellants, Ed. Hooper, J. F. Collett, and H. T. Randell, in the nature of trespass to try title. The real question at issue in the case should have been the true location of the boundary line between section 44, block 1, claimed by appellee, and section 43, claimed by appellants, and the location of the north boundary line of section 43 and the...
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This suit was brought by Chambers County against the plaintiff in error to recover on a note for $2,685, and to foreclose a vendor's lien upon land described in the petition. The note sued on bore date June 10, 1907, and was due and payable 10 years after date, with interest from date at the rate of 6 per cent. per annum, payable annually in advance on August 1st of each year, and provided for an ...
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On November 11, 1912, there was presented to the commissioners' court of Jefferson county a petition requesting said court to order an election in school districts Nos. 1, 2, 3, and 18 in Jefferson county, to determine whether intoxicating liquors should be sold in the territory comprised of said school districts, usually called a local option election. The commissioners' court on said date grante...
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This suit was brought by the appellant against the appellee H. A. Hooks, administrator of the estate of Jno. W. Davis, deceased, and the heirs at law of said Davis, to recover all of the property of said estate. The material allegations of the petition are as follows: "That heretofore, on or about the year 1895, the plaintiff, who was then about nine years of age, was in the possession, custody, a...
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This is an appeal from a temporary restraining order or injunction, granted by the district judge of the Fourteenth judicial district of Texas in chambers on June 21, 1913, at the suit of M. E. Reinhardt and others against the trustees of the Royse independent school district of Rockwall county and the members of the Royse Booster Club, restraining the trustees of said school district and the memb...
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8224 Writ of error granted by Supreme Court.
This suit was brought by appellee against appellant and the Houston
Texas Central Railroad Company to recover penalties for overcharges and also to recover damages against appellant for personal injuries received by him in alighting from appellant's train at Brownsboro, Tex. A trial resulted in a verdict and judgment in favor of both roads on the issue...
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This suit was instituted by the appellant against the appellees to recover the sum of $2,202.64, and interest. The petition, omitting formal parts, is as follows: "Now comes the Stein Double Cushion Tire Company, a corporation with its principal office at Akron, Summit county, Ohio, hereinafter called plaintiff, complaining of William T. Fulton Company, a corporation of the state of Texas, with it...
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This suit was instituted by S. S. Anderson against W. A. Ryder and J. A. Shaw, on a promissory note for the sum of $250, and from a judgment in favor of defendants the plaintiff has appealed. It was alleged in the petition that the principal of the note was $250, but by mistake it was written for $200 only, and judgment was sought for $250, with interest and attorney’s fees. In addition to a ge...
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On Motion for Rehearing.
Appellants ask us to make some corrections in and additions to our statement of the pleadings of the parties and findings of fact. Some of the errors have been corrected in the original opinion; others will be corrected here.
In addition to alleging that the Del Carmen Mining Company failed to secure a permit to do business in Texas, it was also alleged that said corporati...
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This is an appeal from a judgment in appellees' favor in a suit for five per cent. commissions on the sale of approximately 90,000 acres of land owned by appellants to one R. B. Masterson, of which sale appellees alleged they were the efficient cause.
As we find the case, the controlling issue is whether appellees were the procuring – the efficient – cause of the sale. It is in effect conceded tha...
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Appellant sued appellee and Thos. J. Freeman, receiver, for damages for personal injuries sustained by him by being caught between certain cars of appellee which were blocking a public street in the city of Houston, alleging that he was riding in an automobile which was being driven for his brother-in-law, Theodore Dreyling, Jr., by a hired chauffeur, in which there were several other passengers, ...
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This appeal grows out of a suit filed by George Sergeant, as receiver of the Commercial Underwriters, an unincorporated insurance association, and as trustee for a large number of parties asserting claims against said Commercial Underwriters. Some 1,300 persons, firms, and corporations were named as defendants in the court below, all of whom were alleged to be engaged in the fire insurance busines...
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This suit was brought by appellee against appellant to recover damages for personal injuries sustained by him while engaged as a trucker in appellant’s service at Hugo, Okl. Appellant answered by general and special exceptions, general denial, contributory negligence, and that the cause of action was governed either by the laws of Oklahoma or the federal Employers’ Liability Act, and that under ei...
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W. W. Henderson, alleging that he was the owner by assignment of two certain promissory notes, sued W. E. Wilkinson and R. M. Wilkinson as maker and indorser, respectively, to recover the amount of said notes and to foreclose the vendor's lien against lots 7, 8, and 9 in block 107 of the Orient addition to the town of Sweetwater. The plaintiff sought, however, in a first count to recover outright ...
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This appeal is from a judgment denying appellants a recovery upon a subscription contract made by the appellee to give $500 for sinking a test well for oil; the obligation sued upon being as follows: "Electra, Texas, 4-21-1911. This is to certify that I, R.S. Allen, agrees and binds himself to contribute $500.00 to Herron-Robbins and associates for the purpose of drilling a test well to a depth of...
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This is a suit brought by appellant, L. A. Foix, to recover from William Moeller, A. J. King, W. L. Rynerson, K. F. Purdy, and the Purdy Gold Silver Mining Company the sum of $2,000 as damages for certain alleged false and fraudulent representations practiced upon him by said parties, whereby he was induced to purchase 5,000 shares of the capital stock of the Purdy Gold Silver Mining Company, pa...
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This suit was brought by Henry Sanzenbacher, L. C. Thaxton, G. C. Thaxton, W. H. Douglas, E. J. Cowles, M. Lerner, Harray Scaling, Otto Polzin, A. Wolf, H. C. Zachery, and Carl Graff, constituting the Henrietta Horse Improvement Company, against A. B. Holbert, F. B. Holbert, Merchants' Planters' Bank of Henrietta, and the First National Bank of Manchester, Iowa, to cancel certain notes, and in th...
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I. Leslie rented a farm, the separate property of Mrs. Annie Gallegley, wife of T. B. Gallegley, for the year 1912. For the use of this farm the tenant agreed to pay one-third of the corn and one-fourth of the cotton raised by him during the year. This rental amounted to 3 bales of cotton and 25 bushels of corn. A. R. Hanks, who held a judgment against T. B. Gallegley, procured the issuance and se...
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J. D. Choate, an employé in the service of the Texas
Pacific Coal Company, received an injury through the alleged negligence of that company in permitting a cage in which he was being lowered to his work to fall to the bottom of the shaft. The precise ground of negligence alleged, and upon which the recovery in this case was had, was that of a defective throttle; the throttle being that portion o...
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This is an appeal from an interlocutory order upon an ex parte hearing granting an injunction upon the following petition: "Petitioners, T. P. Bearden and W. N. Cox, composing the firm of Bearden Cox, complaining of S. B. Britton and George W. Bull, represent that both plaintiffs and defendants reside in Palo Pinto county, Tex. That plaintiffs own in fee simple the land and premises hereinafter d...
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This suit was originally filed by Chas. T. Neill to recover damages for personal injuries received by him through the alleged negligence of the defendant Texas Central Railway Company. Neill subsequently died and his surviving widow and minor children were substituted as plaintiffs. There was a verdict and judgment for the plaintiffs, and the defendant has appealed.
The deceased was a passenger en...
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This action was brought by plaintiff against appellant to recover damages in the sum of $350, alleged to have been occasioned by reason of the willful and wanton conduct of appellant's engineer in frightening a bunch of mules belonging to plaintiff while he was driving them along a public road adjacent to appellant's right of way leading from Cameron to Ben Arnold, in said county. The negligence a...
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Appellant brought this suit in trespass to try title on June 1, 1910, against appellee, for title and possession of lot No. 2, block 19, of Millspaugh's addition to the town of San Angelo.
In addition to her plea of not guilty, defendant relied upon the statutes of three, five, and ten years limitation, and also pleaded stale demand. There was a trial before the court without a jury, resulting in ...
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This suit was brought by appellee against appellant to recover the sum of $3,018.37 alleged to be due him by the defendant upon a contract of sale by plaintiff to defendant of a lot of ties and mining props manufactured by plaintiff out of timber procured by him from defendant, and other sums alleged to be due plaintiff under said contract, among which was a claim for $1,445.89 alleged to be then...
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This is an action of trespass to try title brought by appellant against the Southern Pine Lumber Company to recover the title and possession of a tract of 60 8/10 acres of land on the Pedro Miranda one-third league survey in Houston county. The defendant lumber company disclaimed as to an undivided one-half of said land, and, as to the remaining one-half, answered by plea of not guilty and pleas o...
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This is an action of trespass to try title by the Louisiana Texas Lumber Company against the Southern Pine Lumber Company, Joe Adams, R. J. Mosely, and E. R. Bennett to recover a section of land in Houston county. The Southern Pine Lumber Company disclaimed as to all the land sued for, except one tract of 160 acres and an undivided interest of 110 acres in another tract of the section, and also e...
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This is an appeal from an order of the district judge of the Ninth judicial district, in chambers, refusing to dissolve a temporary injunction theretofore granted by him. Our statutes allow appeals from orders or judgments granting, refusing, or dissolving temporary injunctions. Revised Statutes 1911, art. 4644. No provision is made for an appeal from an order refusing to dissolve a temporary inj...
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8224 Writ of error denied by Supreme Court.
This is an appeal from a judgment rendered in favor of J. H. Passons against appellant railway company for $1,000. There were other parties plaintiff, but a verdict was instructed against them, from which there is no appeal. For cause of action it was alleged, in substance, that the wife of J. H. Passons owned a house and lot in which they resided as the...
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Appellees sued appellant upon a promissory note for $1,500, signed by appellant and payable to appellees. Appellant answered by general demurrer, general denial, and specially that appellant was induced to sign the note sued upon by the false representations of appellees in reference to the state of accounts between appellant and appellees, and which were relied upon by appellant. The specific cla...
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Findings of Fact. On July 15, 1907, .appellant, through its salesman, W. E. Ellison, sold to appellee, by written contract, two gin stands and some other gin machinery. Said contract, among other things, contained the following clause: “Warranty. — Said machinery is warranted to be good material, to perform well, if properly operated by competent persons. Upon starting, if the purchasers, at an...
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8224 Writ of errer dismissed by Supreme Court.
A. A. Brack, appellee, sued N. R. Bagley, appellant, and P. A. Vance, in the county court of Bexar county, as partners, for $250, the value of a colt. Appellee alleged as his cause of action that: "On July 17, 1908, he placed with defendant for pasturage, from month to month, one black mare colt, of the reasonable market value of $250, agreeing to pay...
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8224 Writ of error granted by Supreme Court. *Page 250
Appellee sued appellant in the district court of Wood county for damages for alleged personal injuries received by appellee while in the service of appellant as a miner at appellant's mines in Wood county. The specific acts of negligence alleged to have been the cause of appellee's injuries will develop upon consideration of the several assig...
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This is a suit instituted by T. H. Leaverton and others in trespass to try title to recover of George E. Darsey the S. 1/2 of section 2, Dallas Wichita Railway Company survey, in Houston county. Darsey answered by general denial and plea of not guilty, and also impleaded J. L. Hume and T. F. Pinckney, from whom he had bought the land, and who had executed to him a deed with covenants of general wa...
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8224 Writ of error denied by Supreme Court.
Appellees Adoue Lobit, plaintiffs in the court below, brought this suit on June 30, 1910, against Ella Smith, and Libby and Pearl Smith, children of Ella Smith and W. M. Smith, to recover the title and possession of blocks numbered 55, 58, 75, and 78 of Flake's subdivision of a part of the W. H. Jack league in Galveston county near the town of Hitchcock...
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This is a suit for damages instituted by appellee against appellant, which it was alleged accrued by the negligence of appellant in permitting her yacht, Japonica, to drift during a storm across the cable of appellee's schooner, Alice, in such way as to sever it, and cause it to be thrown against a wharf and be destroyed. The cause was tried by jury, and resulted in a verdict and judgment in favor...
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This is a suit by R. J. Willmann against appellant to recover $648.10, alleged to have been paid for corn which was afterwards discovered to be heated and spoiled. Appellant pleaded his privilege to be sued in Bexar county, and answered by general and special demurrers and general denial, and specially answered that he bought the corn from J. E. Ervine Co., of Ft Worth, Tarrant county, Tex., who ...
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This is a suit instituted by appellant against Reeves Co., a foreign corporation, John W. Felix, and the First State Bank of Skidmore, Tex., to rescind a sale to him of a certain 25 horse power traction engine, to cancel certain notes given for purchase money of the engine, and for actual damages in the sum of $2,740.75, and $10,000 exemplary damages as against Reeves Co. and John Felix. In the ...
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8224 Writ of error denied by Supreme Court. *Page 265
This suit was brought by the parish of Vernon, in the state of Louisiana, against William C. Whitney to recover upon a judgment for $4,644 in favor of the parish against said Whitney, rendered by the district court of said parish on May 12, 1909. The suit in which this judgment was rendered was brought by Whitney against the parish to recover ...
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8224 Writ of error denied by Supreme Court.
This is an action of trespass to try title by B. A. Platt against the Thompson Tucker Lumber Company, to recover a tract of 322 acres of land in Trinity county, being part of the Benj. Ellis, Sr., 432-acre survey, and for damages for cutting and removing timber therefrom. The defendant pleaded the general issue and not guilty. Upon trial with the assist...
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Alvin Green on June 9, 1911, was a passenger on a train of the Trinity Valley Northern Railway Company, having paid his fare from Fouts to Perkins, distant 2 1/2 miles. The conductor knew his destination was Perkins, which was a flag station, and it was his duty to stop the train at that point a sufficient time to allow plaintiff to alight therefrom, and plaintiff requested him to stop, but he di...
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This is an action of trespass to try title by Peter Cook and others, children and heirs at law of F. W. Cook, to *Page 280
recover a tract of 320 acres of land, part of the M. M. Bradley league. It was alleged substantially in the petition that 640 acres, of which the 320 acres sued for is a part, had been acquired by the father and mother of plaintiffs under the statute of limitation of 10 years...
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On April 16, 1909, R. E Cunningham instituted suit against J. S. Rice and Cecil Lyons, as receivers of the Kirby Lumber Company, to recover damages for personal injuries alleged to have been sustained by him while engaged in the discharge of his duties as an employé of the receivers by reason of their negligence in various particulars set out in the petition. It was alleged that the Kirby Lumber C...
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The Beaumont Land Building Company, a private corporation, brought suit in the district court against Jas. E. Ferguson and T. J. Wood, H. M. Hargrove, and J. Austin Strange, composing the firm of Wood, Hargrove Strange, seeking to recover upon a promissory note for $2,000 executed by Jas. E. Ferguson, and payable to the order of Wood, Hargrove Strange, and to foreclose a lien upon 10 shares of ...
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R. A. Bishop and J. W. Moberly, appellees, brought this suit against the appellants, the Pecos Northern Texas Railway Company, the Southern Kansas Railway Company of Texas, and the Atchison, Topeka
Santa Fe Railway Company, in the district court of Swisher county, for damages to a shipment of cattle from Tulia, Tex., to Kansas City, Mo. The case was tried before a jury, and resulted in verdict a...
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This is a suit for partition instituted by some of the heirs of Alfred Blount against others of such heirs. The land sought to be divided consisted of two tracts of land adjoining, and containing in the aggregate 242 2/3 acres. P. E. Scarborough intervened, claiming that he was the owner by purchase and conveyance from William Blount, one of the heirs, of his interest as such heir, and that he was...
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This suit was instituted, as appears from appellant's brief, in the district court of McLennan county, on the 12th day of March, 1912, by John Riley and 70 others, all of whom were citizens of the town of West, in McLennan county, against Lee R. Davis, as tax collector of said county, to compel the said Davis by mandamus to issue to plaintiffs poll tax receipts and exemption certificates for the y...
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8224 Writ of error denied by Supreme Court. *Page 320
The appellants, Tiefel Bros. Winn, instituted two suits in the district court of Farmer county, against the appellee, Maxwell, numbered, respectively, 111 and 112, upon the docket of that court. In cause No. 111, appellants alleged the ownership in them of certain cattle, and that they were entitled to the possession of same, and that the pro...
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This suit was brought by appellee against appellant to recover damages for personal injuries occasioned by the giving way of a scaffold erected for him to stand upon in laying brick upon a wall being erected in the construction of a building for appellant. This is the second appeal of this case; the former appeal being reported in 132 S.W. 370, to which reference is made for a fuller statement of ...
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1. This was a suit by J. D. Link against H. C. Caruthers and Arthur Cobb, to recover of Caruthers the value of a mule, sold by said Caruthers to Cobb, and against Cobb on his guaranty of said claim. Caruthers filed plea of privilege to be sued in Bell county, the county of his residence, and alleged conspiracy on the part of Cobb and Link to defeat the jurisdiction in Bell county. Link testified t...
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This suit was brought by the appellant, the state of Texas, to recover from appellee, the Jasper Eastern Railroad Company, penalties for the failure of appellee to erect and maintain water-closets or privies in, or within a reasonable and convenient distance from, its depot at Bleakwood, a station on its line of railway, for the accommodation of its passengers who are received on and discharged f...
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The Houston Oil Company of Texas brought this suit against Henry Davis to recover certain pine and hardwood logs alleged to have been cut and removed by defendant from a tract of land owned by plaintiff and stacked on the bank of the Sabine river, and, by an allegation that the defendant, for the purpose of preventing identification of said logs, had wrongfully and willfully mixed and intermingled...
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J. O. Ross sued the Pacific Express Company in the justice court for $122.20, the value of a box of automobile parts which had been shipped from Detroit, Mich., by the Everett-Metzger-Flanders Company to J. O. Ross at Houston, Tex., by the Pacific Express Company, and which it was alleged had been lost by the negligence of the express company. The plaintiff had judgment in the justice court for th...
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[1] On February 15, 1911 (Acts 32d Leg. e. 112), the Legislature passed what it regarded as a special law, and which act undertook to confer upon the city of New Braunfels power to construct, maintain, and operate, within and without the city limits, a waterworks system and electric light system and any other public utilities; and, in order to accomplish the purposes stated, the act authorizes the...
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8224 Writ of error denied by Supreme Court. *Page 348
This is an action of trespass to try title by Mary Broussard and others against W. W. Cruse and others to recover two tracts of land of 640 acres each patented to David J. Johnson, assignee of Thomas Hughes. A trial, without a jury, resulted in a judgment for defendants, from which plaintiffs prosecute this appeal. There are no conclusions of ...
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8224 Writ of error denied by Supreme Court.
This is a suit brought by defendant in error, Charles Lignoski, against Carl A. Albrecht, in the district court of Dimmit county, to recover damages for the breach of a contract of employment and also to recover the sum of $1,000 in lieu of a certificate for that amount of common stock in the corporation formed by the plaintiff in error. Defendant in err...
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Appellants instituted this suit against appellee to recover one-half of five tracts of land, consisting of three 320-acre tracts, one 160-acre tract, and one 114-acre tract, aggregating 1,234 acres of land, all situated in Bandera county, all having been patented to D. G. Chaney except the 114 acres which was patented to Dewitt B. Snow, and to set aside an execution sale of said lands on the groun...
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Appellants sued appellees for $250 for injuring and damaging a diamond of appellants to that extent while in the possession of appellees. There was judgment by the court for the appellees, from which this appeal is taken. The following are substantially the facts developed upon the trial of the case and upon which the judgment was based: M. A. Joy testified: “Mrs. Joy lost the diamond (both it ...
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The appellants, by proper assignment, predicate error upon the action of the court in giving a peremptory instruction to the jury to return a verdict for appellee. The whole case as made by the pleadings and proof resolves itself into the question of the legal effect to be given the acts and transactions between appellee and his brother, Albert C. Jordan, now deceased, concerning the purchase of t...
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This action was by Fritz Schneider against Magdalena Schneider-Grego for the custody of Alma Schneider, a minor. Appellee and Magdalena Schneider-Grego were formerly husband and wife. They were, by the decree of the court, on October 20, 1911, divorced, and, in the separation, the custody of Alma, and the other children of the marriage, was awarded to the father, Fritz Schneider. Appellee, in this...
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Sarah Moore brought this suit to recover on a benefit contract, by which appellant was to pay $350, provided her husband, Bannister Moore, at the time of his death, was a member in good standing in some subordinate lodge of appellant.
We conclude that the evidence shows that, at the time of his death, Bannister Moore was such a member in good standing, and that appellant is liable on said contract...
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This case originated in the justice's court and reaches this court from a judgment of the county court of Aransas county upon appeal. The appellee, N. B. Gentry, sued the appellant, the Wells Fargo Co. Express, for $160 damages suffered by reason of the loss of a shipment of fish from Rockport to Port Lavaca, Tex., through the negligence of appellant, and for the further recovery of $17.50, expre...
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This suit originated in the justice court of Van Zandt county, and from the judgment rendered in that court was appealed to the county court. The suit is to recover the sum of $100.50 for goods charged to have been sold by the defendant in error to the plaintiff in error; the allegations, in substance, being that on or about the 10th day of November, A.D. 1908, plaintiff entered into a written con...
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Defendant in error brought this suit in the justice court against the plaintiff in error to recover on a promissory note for $142 executed by plaintiff in error. Plaintiff in error answered under oath that the consideration for said note had failed. A trial was had and judgment was rendered for plaintiff in error, and defendant in error appealed to the county court. In the county court exceptions ...
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This is an action to recover judgment for damages to live stock which originated in ' the justice court of Cooke county. In June, 1910, the appellee was the owner of 31 head of beef cattle which he desired to ship to Ft. Worth for the market. On the 15th of that month he and W. E. Daniel, who owned the same number and kind of cattle, went to the appellant’s agent at Gainesville to arrange for car...
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As the pleading and evidence in this case are the same as in the companion case of Gulf, Colorado Sante Fé Railway Company v. J. S. Cason, 154 S.W. 367, decided by this court, it follows that the ruling in the instant case must be the same as in that case.
The judgment is therefore reversed and here rendered for the appellant, with all costs....
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Supplementing the facts stated in the original opinion herein, we find additional facts as follows:
Appellee is the owner of lots 24 and 25, in block 2, of the Golden Hill addition to the city of El Paso, upon which she has a seven-room brick house. The Mount Franklin Lime & Stone Company and Richard Capíes owned a rook ¡juarry situated in the vicinity of appellee’s premises, and subsequen...
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[1] The record in this case has been carefully examined, and, while possibly some technical errors have been presented, on the whole we think the judgment must be affirmed. The closest question presented perhaps is ■ under appellant’s first assignment, wherein objection is made to the testimony of the witness Brazell as to the market value of cattle at Grandbury, Tex., for want of qualification...
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Thomas A. Griffin, appellee, sued the St. Louis Southwestern Railway Company, of Texas, appellant, to recover damages for its alleged failure and refusal to issue him a true statement of the reasons why he was discharged by appellant; he having made demand for such statement under chapter 89, p. 160, General Laws of Texas of 1909, commonly known as the "Blacklisting Law." On May 9, 1910, appellee ...
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This suit, which has been before us once before (136 S.W. 1174), was one by the appellee against the appellant and one D. R. Wall upon a promissory note for $1,175, with interest and attorney's fees. The defendant D. R. Wall made no answer, but Miller defended by a plea of non est factum, to which the plaintiff replied that at the time of the execution of the note that the defendants P. J. Miller ...
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8224 Writ of error denied by Supreme Court.
This is an appeal from a judgment dismissing the cause for want of jurisdiction. The suit was for damages for alleged negligence on the part of appellees causing the death of Adolfo Herrera In Nueva Laredo, Mexico.
The accident resulting in the death of Herrera occurred in Mexico, and the details are fully pleaded; but we deem it unnecessary to state the...
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This is the second appeal of this case. The former appeal is reported in 138 S.W. 1111, the style of the case there being Griffin et al. v. Humphrey, and to which reference is made for a statement of the nature of the suit. No material change seems to have been made in the pleadings, since the reversal on the former appeal, and a jury trial on March 25, 1912, again resulted in a verdict and judgme...
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There is no complaint made of the judgment in the instant case vesting title and possession in appellants under their deed to the 56 1/2 and 4 acre tracts of land. The point made by the assignments is in respect to the use and occupancy of the entire 110-acre tract being made subject to the terms and conditions specified in the divorce decree theretofore rendered. In a suit for divorce between S.E...
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The rights of the parties here are to be measured entirely by the terms of a written contract, sued upon by appellee and admitted to have been executed by appellants. According to the terms of the contract, appellee was to manufacture the lumber from his own logs and to stack and pile it on his own millyard so that it could seasonably dry out before delivery to appellants at their planer, about si...
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This appeal is from a judgment rendered in the district court in favor of the appellee for $300 as damages for the killing of two mules. The evidence shows that the mules were struck and killed at night by one of the appellant's passenger trains. It is also shown that at the place where the killing occurred appellant's right of way was inclosed with a good fence and cattle guards in good order; th...
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Appellants had the statement of facts copied into the transcript, and seek to file a separate statement of facts. It is claimed that the statement of facts was so copied because rule 86 (142 S.W. xxiii) for the district and county courts requires all bills of exceptions and statement of facts shall be literally transcribed, and rule 92 (142 S.W. xxiii) requires an index in the transcript of the st...
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Appellee lived in Mt. Pleasant. His sister Dora Todd lived in Greenville. February 24, 1912, E. Todd, son of Dora Todd, delivered to appellant in Greenville, for transmission to appellee in Mt. Pleasant, a telegram as follows: "Greenville, Texas, 2/24. Henry Glass (colored), Mt. Pleasant, Tex.: Come at once. Your sister Dora Todd dead. E. Todd." The telegram reached Mt. Pleasant at 8:20 p. m. of t...
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This is an action to cancel a deed and remove cloud from title to a certain 10-acre tract of land in Seguin, Guadalupe county, Tex., instituted for David Stratton, by his guardian, Dan Erkel, against James J. Riley, Jr., and John Jefferson Burges, appellees herein, in which it was alleged that on December 2, 1911, the said Stratton had executed to appellees a warranty deed to the land in question,...
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The suit was by appellees against appellant and one H.R. Jones on two promissory notes, each dated January 9, 1911, payable to appellees' order on or before March 15, 1911. One of the notes was for $1,000, interest and attorneys' fees. It appeared to have been executed by H.R. Jones, and was shown to be entitled to a credit May 14, 1911, of $992.92. The other note was for $1,500, interest and atto...
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It appeared that the witness John Bass sold the mules and wagons to J. E. Johnson, who was the son of F. M. Johnson and the defendant in the execution levied thereon. The consideration for the sale was $800, paid by J. E. Johnson to Bass, and the former's six promissory notes for $50 each in favor of the latter. There was testimony sufficient to support a finding that the $800 paid to Bass was mon...
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This was a boundary suit Involving the proper location of the dividing line between the Bunker and Donnelly surveys. The Bunker was surveyed in 1838, with field notes as follows: "Beginning at a post oak 4 inches in dia., Brock's N.W. corner, on Lawson's south boundary; thence south with John Brock's west boundary 2,760 varas to a pine, oak and hickory, the pine marked `W,' a corner of said Brock'...
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This suit was filed by B. F. Harless against Mrs. L. M. Hearn and her husband, D. S. Hearn, on written mortgage, which was executed to secure the payment of the balance of purchase price of a certain diamond ring, consideration payable in monthly installments. The instrument provided that the purchaser should retain control and custody of the ring, not to permit it to be removed from the county, t...
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This suit was instituted by appellant against the executor and heirs of H. H. Dooley, alleging that she had made a parol agreement with deceased to purchase lot 9, in block 17, Castainie addition to the city of Houston, for $250, to be paid in monthly installments; that the lot had been paid for, but no deed had been executed before the death of H. H. Dooley, and she prays that the court require e...
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The suit resulting in the judgment from which this appeal is prosecuted was the ordinary one of trespass to try title. Appellant was the plaintiff, and it appeared that he had title to the land (the Geo. *Page 617
W. Cartwright survey of 215 acres in Harrison county), unless the appellees had acquired title thereto under the statute of limitations of 10 years. The jury found appellees had so acqu...
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Appellee sued appellant in the trial court for lumber used in rebuilding appellant’s residence, and upon trial before a jury recovered verdict followed: by judgment. The controversy grew out of a contract entered into between appellant and one Rud-asill, the terms of which are not disputed, and by which Rudasill, who was a contractor, undertook and agreed, in substance, to furnish all necessary...
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8224 Writ of error denied by Supreme Court.
This is a suit brought by appellee against appellant to recover damages for personal injuries alleged to have been sustained by appellee's wife by reason of the negligence of appellant. Plaintiff alleged, in substance, that while one of appellant's cars was standing still, ready for the reception of passengers, plaintiff's wife stepped upon the running b...
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8224 Writ of error denied by Supreme Court.
The trial court sustained a general demurrer and several special exceptions to the appellants' petition, and, upon their refusal to amend, dismissed the cause. The ruling of the court in sustaining the general demurrer is assigned in the brief as "error apparent upon the face of the record," which should be considered by this court without assignment of ...
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By treating the ruling of the court as sustaining a general demurrer to the petition, as was the conceded effect of the ruling, we may proceed at once to consider the controlling facts of the case as the petition discloses them, and give the proper legal effect thereto. Lamar county was organized in 1841. In order to give the proper legal effect to the acts of the parties, the act of Congress of t...
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8224 Writ of error denied by Supreme Court. *Page 630
Suit by appellant for the recovery of damages arising from personal injuries. It was alleged that defendant was engaged in the operation of a street railway system in the city of Houston, and on the night of January 23, 1911, while attempting to take passage on one of said cars, and while standing in the usual, ordinary, customary, and proper ...
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8224 Writ of error denied by Supreme Court. *Page 634
Appellee brought this suit against the appellant in the district court of Hunt county, Tex., on the 24th day of August, 1911, alleging, in substance, that on July 19, 1911, appellee was employed by appellant is car repairer; that, in the performance of his duties, it was necessary for him, to use a ladder which was furnished him by appellant i...
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8224 Writ of error denied by Supreme Court.
Mrs. M. J. Hamilton joined by her husband, John Hamilton, brought this suit on December 1, 1910, against Mrs. F. E. Harry, a widow, to reform a deed so as to embrace in the transfer and conveyance thereby intended two lots or parcels of land situated in the city of Dallas, Tex., instead of one lot as therein described, the petition alleging that on the 1...
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There is no statement of facts with the record. From findings made-by the court it appears that the Quitman Mercantile Company, a Texas corporation, was indebted to various persons in sums it. could not pay. Appellant, a Tennessee corporation doing business in Nashville, had there sold goods to the mercantile company for which the latter had not paid. At, a meeting of creditors of the mercantile c...
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This is an appeal from an order granting a temporary injunction in favor of appellee, restraining appellant from instituting other and additional suits against appellee on a "certain contract of accident and health insurance, No. 58390, so long as suit in the county court of Freestone county and suit No. 1252 in justice court of Precinct No. 6 of Freestone county, Tex., shall remain pending and un...
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In July, 1888, T. J., H. J., and G. T. Easterwood, three brothers, owned two tracts of land, situated in Taylor county, Tex., of 640 acres each, known as sections 48 and 54. They also owned in common a number of horses, mules, cattle, and farming implements. In July of 1888 they executed a mortgage upon section 54 and 440 acres out of section 48 to secure the payment of their joint note for the su...
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Appellee Galloway sued appellant in the county court of Cottle county for the loss of certain cows and damage to the remainder of the cows, in a shipment from Ft. Worth to Paducah, Tex. There was a verdict and judgment in appellee's favor of $225.
Appellant first assigns error upon the failure of the court to charge the jury upon the measure of damages. While the general rule is that omission on t...
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The appellee, W. J. Buntyn, sued the appellants, M. C. Le Master and W. A. McSpadden, composing the partnership of the Overland Automobile Company, in the county court of Potter county, Tex., by a petition of three counts, as follows:
First. In the first count he alleged an express, oral contract with the defendants, by the terms of which they agreed to pay him "a commission of 7 1/2 per cent. of ...
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The appellee Lynn presents a motion to dismiss this appeal because appellant has not filed an appeal bond, or affidavit in lieu thereof, as required by the statute. The judgment from which appeal Is sought was rendered at a term of the district court of Armstrong county, which adjourned the 9th day of October, 1912. An affidavit in forma pauperis was made on the 9th day of October, 1912, in lieu o...
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J. W. Streetman, who rented land to C. B. Lasater for the year 1910, sold to Lasater certain farming implements which were used in cultivating the crop grown by the tenant during that year. Lasater agreed to pay for the implements on September 1, 1910, but was unable to do so on account of a poor crop. On December 22, 1910, he executed and delivered to the landlord his promissory note for the prin...
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W. N. Mott instituted this suit against the Spring Garden Insurance Company to recover $1,250, the amount named in a fire insurance policy issued by the defendant upon a certain dwelling house owned by him, situated in the town of Abilene. He alleged that the house was destroyed by fire while the policy was in force, and that the house was worth $1,500. In addition to a general demurrer and a gene...
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As appears from the plaintiff's petition, appellee, a resident of Parker county, Tex., instituted this suit in the district court of the county of his residence against J. V. W. Holmes and others, alleged to reside in Nolan county, Tex., to recover damages because of alleged fraudulent representations made by the defendant in the exchange of certain properties between the parties. The misrepresent...
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The Alamo Lumber Company brought this suit against Charles E. Barnett and E. F. Barnett, to recover upon a promissory note for the sum of $375, together with 10 per cent. interest and 10 per cent. attorney's fees, and to foreclose a mechanic's, materialman's, and contractor's lien on a tract of land in Matagorda county, by which the payment of said note was alleged to be secured. The defendants ha...
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This is an action commenced in the district court of Taylor county by Mrs. Willie Metcalfe against the Modern Woodmen of America to recover on an insurance policy issued by the defendant on the life of plaintiff's former husband, Hugh Metcalfe. Plaintiff in her petition alleged that the defendant was a fraternal beneficiary association incorporated under the laws of the state of Illinois, doing bu...
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J. I. Campbell seeks by this appeal to reverse a judgment recovered against him by E. L. Shifflett, and the principal grounds upon which he seeks such reversal is that it finds no support in the testimony. The action was one by the appellee against the appellant to recover a sum alleged to be due as the plaintiff’s share in certain profits alleged to have been received by the appellant as broker’...
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8224 Writ of error denied by Supreme Court. *Page 665
The appellee, Mrs. Adella Gathings, instituted this suit against the appellant, Hill County Cotton Oil Company, to recover damages on account of loss of services of her minor son, Bascom Gathings. The petition alleges, in substance, that plaintiff is a widow and the surviving parent of Bascom Gathings; that in November, 1911, her said son, who...
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Supplementing the facts stated in the original opinion herein, we find additional facts as follows:
By deed dated December 20, 1905, R. E. Nutt and wife conveyed to C. W. Hahl and F. A. Connable, composing the firm of C. W. Hahl & Co., 10,997 acres of land in Bee county, Tex., and as a part of the consideration therefor the vendees executed notes aggregating $80,754.50, to secure the payme...
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This suit was brought by appellees against the appellant to recover a tract of land on the John Kerge survey in Tyler county, and also to recover the value of timber cut from said land by appellant. This is the third appeal of the case. The opinion of this court on the first appeal is reported in 56 Tex. Civ. App. 620, 120 S.W. 547, and on the second in135 S.W. 651. The only issue involved on the ...
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Appellees sued appellant on October 20, 1911, in justice's court of precinct No. 1 of Aransas county for $134.28 due on account. November 27, 1911, appellant filed his written answer containing demurrer and special exceptions. November 27, 1911, plaintiffs filed their account, itemized, the items dated from January 1 to April 13, 1909, aggregating $134.28, and an item of 15 cents being dated March...
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J. W. Peacock sued Thos. C. Hoy and others, vendees of said Hoy, to collect certain vendor's lien notes executed by Hoy as part of the purchase money for a certain tract of land situated in Stonewall county, conveyed by Peacock and wife to Hoy by a deed of general warranty, and to foreclose the vendor's lien on said property. There was a judgment for the plaintiff, and the defendants have appealed...
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This is an action instituted by the appellant against J. L. Chaney and wife to recover a tract of land situated in Wise county. The appellant deraigns title *Page 680
through a sale under a deed of trust which had theretofore been executed by J. L. Chaney. The pleadings having disclosed that J. L. Chaney was insane, he was represented at the trial by R. E. Carswell, as guardian ad litem. After a ...
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This is an appeal from a judgment of the county court. [1, 2] Appellee leased from appellant, for a term of five years, at $15 per month, certain premises in Nacogdoches. A written contract was entered into, and appellee signed separate notes for each month’s rent during the term. • When the term was only partly expired, appellee vacated the premises, paying the rent to date, and brings this ...
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G. W. Cavin sued J. H. Summers
&
Sons in the justice court for $146.80, claimed to be due for a car of lumber which defendants, lumber dealers, ordered from plaintiff, who was a sawmill owner, to be shipped to their customer, Owens Dumber Company, at San Antonio. When the car reached San Antonio, it was rejected by the Dumber Company on the grounds, as claimed, that it was not up to ...
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J. A. J. Bradford sued O. L. Wilkirson for the title and possession of four vendor’s lien notes amounting to $4,-000, and, in .the alternative, for the value of said notes as for a conversion. One L. H. Thomas was also joined as a defendant, but did not answer, and judgment by default was rendered against him. Wilkirson answered, and the case was tried before a jury resulting in a verdict and j...
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The plaintiff, Berndt Johnson, brought this suit against the defendant, Houston Packing Company, to recover damages in the sum of $10,000 for personal injuries sustained by him by reason of being struck and run over by a wagon of defendant drawn by a team of mules negligently and recklessly driven by defendant's servant upon the public streets of the city of Galveston. As defendant makes no conten...
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8224 Writ of error denied by Supreme Court. *Page 695
This is an action of trespass to try title, instituted by appellants, Mrs. Rowena Gibson and husband, Thomas Gibson, and Mrs. Belle Eardley, joined by her husband, W. N. Eardley, against appellees, Daniel Oppenheimer, Adelaide Oppenheimer, Hattie O. Lassner and her husband, Sigmund Lassner, Lilly Oppenheimer, Irwin Oppenheimer, Lottie O. Rouff...
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8224 Writ of error denied by Supreme Court.
The appellant, J. M. Dupree, filed suit in the district court of Lubbock county, Tex., to recover on a vendor's lien note for $120, and for the purpose of foreclosing the vendor's lien securing said note on lots 20, 21, 22, and 23 of the Dupree addition to the town of Lubbock. The appellant had sold to the defendant Penney the property above described, w...
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8224 Writ of error denied by Supreme Court. *Page 1028
The Ft. Worth Denver City Railway Company has appealed from a judgment in favor of S. R. Bourgeois foreclosing an alleged lien upon a spur track belonging to appellant, under and by virtue of the provisions of article 5640, Revised Statutes 1911, for work performed with tools and teams upon the spur track.
The railway company let the contrac...
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8224 Writ of error denied by Supreme Court. *Page 1031
This is an action of trespass to try title, brought by appellant, James R. De Lay, and J. E. Lancaster, against appellee, George C. Wolffarth, in the district court of Terry county, and by agreement the venue was changed to Lubbock county, where the same was tried in the district court of that county. The appellee entered a plea of not guilty...
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8224 Writ of error granted by Supreme Court. *Page 1033
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1034
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1035
J. This is a suit by W. L. Moody Co. against Hudsp...
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Appellee brought this suit against Belle Baker and M. Tyson on the 22d of September, 1911, alleging that said Belle Baker on the 29th of October, 1910, had executed and delivered to J. R. Raney her note, payable to his order on or before October 1, 1911, in the sum of $260.10, with interest and attorney's fees, which had been, before maturity and for value, transferred by said Raney to appellee; t...
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Appellee brought this suit against C. W. Walters on a promissory note for $500, and to foreclose a vendor's lien. He sued out a writ of sequestration, which writ commanded the sheriff to take into his possession three box houses, situated on the land on which vendor's lien was sought to be foreclosed. The sheriff made his return on said writ, showing that he took possession of "two of the within-d...
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This appeal has been prosecuted upon an agreed statement of the pleadings and facts made up, filed, and approved as provided in Revised Statutes, 1911, art. 2112. All of the facts so agreed upon will of course be adopted and found by us; but, for the purpose of this opinion, we think it only necessary to make a brief statement thereof.
The action was instituted by M. R. Fox, Josephine Ferguson, jo...
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Findings of Fact.
Appellee, after having assisted his wife, mother-in-law, and children on the car at Buckholts, jumped from the moving train and was injured. He brought this suit, alleging negligence on the part of appellant in moving said train, without giving him reasonable time to get off the same. Buckholts is a small station at which appellant's passenger trains s...
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This is an appeal from a verdict and judgment in favor of appellee for damages alleged to have been caused by the defendant's negligently causing the destruction by fire of certain cordwood belonging to appellee.
There is no assignment of error complaining of the verdict of the jury; the only complaint urged in appellant's brief being addressed to certain paragraphs of the court's charge, and to t...
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This was a suit by the Gauss-Langenberg Hat Company, plaintiff in error, against Jack Alley, defendant in error, appealed from the county court of Lynn county. The Hat Company sued the defendant upon a promissory note, dated March 10, 1910, for the sum of $250.32, payable to the order of the plaintiff, maturing 180 days after date, and bearing interest at the rate of 10 per cent. per annum from da...
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Appellee sued appellant for a divorce from the bonds of matrimony. It is perhaps needless to state that the divorce was granted, and appellant does not seem to be at all aggrieved at that result, and the award of the custody of the children to appellee; but this appeal is the result of the court decreeing that appellant should pay certain alimony, amounting to $71.65, which was due and unpaid.
Thi...
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Appellee sued appellant and Mrs. Lizzie C. Adams to recover $1,900 alleged to be his portion of commissions due the Devine Realty Company, of which he was a member, on sales of real estate belonging to appellant and Mrs. Adams. The parties to this suit, together with A. M. Patterson and W. L. Dubose, by written agreement, formed the Devine Realty Company, for the purpose of selling real estate, an...
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G. N. Robertson filed this suit in the justice court of Cottle county against E. B. Edwards and W. B. Bassham, as de *Page 1066
fendants, to recover the amount of a promissory note, in the sum of $33, together with the amount of an open account, aggregating $82.25. A trial in the justice court resulted in judgment in plaintiff's favor for the amount of the note, interest, and attorney's fees, fro...
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This is a suit for divorce by the husband against the wife, upon the ground of cruel treatment of such a nature as to render their living together insupportable. Verdict of the jury and judgment of the court were in favor of appellee, the husband. Appellant assigns as error the insufficiency of the evidence to support the verdict.
Under the law in this state the granting or refusal of a prayer for...
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Appellant filed suit in the trial court to restrain appellee, the tax collector of Navarro county, from selling certain property belonging to appellant and levied upon by direction of appellee, the proceeds of such sale to be applied in payment of certain claimed taxes. The court below declined to grant the relief sought, and from that action this appeal is taken.
All the issues presented by the p...
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This suit was instituted by appellee against appellant, a contractor, to recover damages for personal injuries, alleging that he was employed by appellant, who was engaged in remodeling a three-story brick building in Waco, and that at the direction of appellant's foreman appellee, with two others, got into the elevator to descend from the top of the building, and was injured by the falling of sai...
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Defendant in error has filed a motion to dismiss this appeal, because the plaintiff in error has failed to comply with the statutes and the rules governing this court as to filing briefs.
This cause is set for submission March 6, 1913. It appears that no brief has been filed by the plaintiff in error with the clerk of the district court, nor has the defendant in error been notified by said clerk o...
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In September, 1911, L. E. Wortham, who was engaged in selling pictures and picture frames, ordered a shipment of picture frames from Max Sternberg Co., *Page 1072
of Chicago, Ill., to Lampasas, Tex., which shipment was made, and the bill of lading therefor, with draft attached, was sent to a bank at Lampasas. Wortham paid the draft and received the bill of lading on October 12, 1911. The picture...
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The judgment of the lower court in this case at a former day of the present term was affirmed without a written opinion, and appellants have filed a motion for a rehearing. The suit was instituted by appellee, alleging that he was the owner of 125 acres of land, a part of the R. G. Cartwright survey, in Kaufman county, Tex.; that he bought same from J. H. Faulkner and wife, Minnie Faulkner, and re...
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The appellee, Porter Farrell, brought this suit against the appellant, ¿Etna Life Insurance Company, and E. Dick Slaughter and C. H. Verschoyle, alleging that in the year 1906 he made an agreement and contract with the appellant, through its agent, Louis M. Hastings, whereby appellant agreed to pay plaintiff 15 per cent, of the gross premiums derived from certain liability insurance, which the ...
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8224 Writ of error denied by Supreme Court. *Page 1169
This suit was brought by appellee against appellant to recover damages for personal injuries alleged to have been caused by the negligence of appellant. Plaintiff's petition alleges, in substance, that on or about August 13, 1910, while plaintiff, who was then and had been for some time prior thereto in the employment of defendant in the capa...
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Action for damages by appellant against the El Paso Morning Times Company and Thomas O'Keffe, publishers of the El Paso Times, a daily newspaper, alleging: That on July 20, 1910, appellees published in their said newspaper and circulated a libelous article concerning appellant, as follows: "Forfeited $25 Bond. A. Fessinger arrested on the charge of assault by Officer Fenley, forfeited $25.00 bond ...
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This appeal is from an order of the judge of the district court of Matagorda county, made in vacation, refusing a temporary injunction in a suit for injunction brought in said court by appellant against the appellee. Appellant is a corporation organized and chartered under the laws of this state for the purpose of maintaining and operating an irrigation canal and plant, and appellee is a corporati...
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On July 28, 1891, the appellant recovered against appellee a judgment in the United States Circuit Court of the Eighth Judicial District, sitting in and for the district of Colorado at Denver. On December 16, 1907, said judgment was revived by said Circuit Court on scire facias, and on April 14, 1908, this suit was brought in the district court of Collin county by appellant against appellee to rec...
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This suit was instituted on June 17, 1907, by Alfred Davis et al. against the Mutual Life Insurance Company of New York to compel the defendant to accept a premium of $375.50 on a policy of insurance on the life of one L. J. Thompson, which matured October 27, 1899; plaintiff tendering the amount of such premium, together with all interest thereon. On December 16, 1909, an amended petition was fil...
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This is a suit instituted by appellee, a minor, through his next friend, to recover damages from appellant, alleged to have been sustained by appellee through the negligence of appellant in striking a vehicle, in which appellee was riding, with one of its cars, whereby he was thrown to the street and seriously and permanently injured. The grounds of negligence alleged consisted in permitting the t...
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This cause is affirmed. There is no statement of facts, and under the finding of facts by the trial court, the judgment of that court is correct. No reversible error being pointed out, we affirm the judgment of the court below. ...
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Appellee brought this suit against the appellant to recover damages for personal injuries received by him while working as an employé of appellant as a machinist in a rock quarry; that the injury was caused by the falling of a derrick, due to the negligence of appellant.
Appellant answered by general demurrer, general denial, assumed risk, and contributory negligence.
A trial resulted in a verdict...
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On September 8, 1908, McSweeney filed suit in trespass to try title against Ellerman to recover possession of the two upper floors of a building owned by plaintiff, situate in city of Houston, and upon the same date procured the issuance of a writ of sequestration under which the premises in controversy were seized. On September 11, 1908, Ellerman gave replevin bond and retained possession. He rem...
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In this suit the Galveston Western Railway Company seeks by injunction to restrain the city of Galveston and its governing body from interfering with the laying of track to form a connection between its track on Ninth street and its track on Avenue N north of the sea wall and its right of way in the city of Galveston. The trial court sustained a general demurrer and certain special exceptions to ...
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Page 359
This appeal comes from the district court of Nueces county, where it was tried upon change of venue from Hidalgo county. Appellee, the Mercedes Plantation Company, sued the appellant, the American Rio Grande Land & Irrigation Company, both domestic corporations, for damages arising from alleged breach of contract by appellant to furnish water to ap-pellee for irrigation purposes. Appellee’s allega...
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The appellee, First National Bank of Canyon, brought suit in the district court of Lubbock county against C. C. Lane, R. I. Tubbs, and Cora L. Tubbs on two vendor's lien notes, each for the sum of $750, payable to J. J. Dillard, or his order, dated February 26, 1909, due in one and two years from their respective dates, each bearing interest at the rate of 8 per cent. per annum, with the usual sti...
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This is an action by appellee for damages, growing out of the shipment of live stock from Happy, Tex., to Kansas City, Mo. Appellee alleged, in substance, that on August 20, 1910, the defendant railway company received from plaintiff for transportation from Happy, Tex., by it and its connecting carriers, to Kansas City, Mo., about 235 beef cattle, for which defendant issued three receipts or bills...
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The plaintiffs, Jasper L. Douthit et al., sued in trespass to try title for one league and labor of land, known as the Francis Jordan league, in Hartley county. The defendant, G. W. Southern, answered by general and special exceptions, plea of not guilty, plea of three, five, and ten years statute of limitation, and disclaimer as to all of said land except 1,111 1/4 acres, which was set out by met...
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This record discloses that McCann had sued the defendant, Shriver, upon an alleged action of agency in selling the latter's land, and in the same court Shriver had sued McCann in another and different suit, upon a promissory note, and for a foreclosure of a chattel mortgage upon personal property securing said note, and the district court, upon motion, consolidated the two cases which action is no...
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J. H. Hall and G. L. Abbott were the owners of survey No. 98, in block B – 5, Randall county, Tex., and also the owners of lots Nos. 14 and 15, in block 40, in the town of Canyon, Randall county, Tex., and the following liens, affecting the property, were effectuated upon the same in chronological order, and the First National Bank of Canyon, appellee herein, became the owner of said liens to secu...
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This is a suit instituted by the Bank of Miami, a banking copartnership, against the Kell Milling Company, a corporation, and S. M. Bird. S. M. Bird, with one D. B. Darby, constituted the Chillicothe Grain Company, which had entered, into an agreement with the Kell Milling Company, by virtue of which S. M. Bird was to buy grain at Miami, Roberts county, Tex., and ship it to the Kell Milling Compan...
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This is a suit in trespass to try title, instituted by Juan Zarate and Damasio Zarate for themselves individually, and as attorney in fact for 19 others, against Antonio Villareal and 19 others to recover 10,619.23 acres, undivided, out of a tract of land containing about three leagues, situated in Brooks county, Tex., and known as La Alameda, Pilar Zarate y Bayerena original grantee and patentee,...
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This is an action of trespass to try title to lot 2, block 8, city block 650, near Southern Pacific Railway Company's track, San Antonio, Tex., instituted by appellee against appellant, who answered by general demurrer, general denial, and a plea of not guilty. The court instructed the jury to return a verdict for appellee, and upon that verdict judgment was rendered in favor of appellee for the l...
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This is a suit for damages alleged to have resulted to appellees by reason of personal injuries sustained by the wife of Buck Searcy West on July 4, 1911, when a team driven by said West became frightened at a locomotive on appellant's track, at a public road crossing, and Mrs. West jumped from the vehicle. Appellant's statement of the issues made by the pleading is adopted by us, as follows:
"App...
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This case is now before us upon motion of the appellee to dismiss the appeal. It appears that on July 9, 1912, appellee was granted a license as a retail liquor dealer in Bexar county. On September 14, 1912, W. P. Lane, as Comptroller of Public Accounts of the state of Texas, by virtue of powers which he claimed to possess by virtue of Act 31st Leg. c. 17, §§ 9a-9i (R.S. 1911, arts. 7436 to 7444),...
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Appellees applied to the district judge of the Twenty-Eighth judicial district of Texas for an order restraining A. B. Cole, mayor of Brownsville, C. B. Thorn, Teofilo Crixwell, Louis Cobolini, H. J. Kirk, J. A. Brown, B. L. Cain, S. I. Benavides, and W. S. Blackshear, aldermen, Cridanto Vallareal, city secretary, and the Creosoted Wood Block Paving Company from putting into effect certain ordinan...
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Appellant's first assignment of error complains because the trial court overruled his demurrer to appellees' petition, the contention being that the petition shows upon its face that appellees were seeking to enforce or obtain a benefit resulting from an illegal contract between the parties. The right of recovery asserted in the petition is not founded upon the contract referred to, but is based u...
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The appellee, Wiley, recovered a judgment in the court below against the appellant for $350 as damages for personal injuries. The testimony shows that Wiley was about 19 years of age, and was employed by the appellant in its railway shops at Marshall, Tex. On the date of the injury appellant's switch engine had been sent out to assist one of its trains over a grade a short distance from the depot,...
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Appellant's brief contains four assignments of error, and these complain of the action of the trial court in giving the defendant's requested instructions Nos. 2 and 3, and challenge the verdict of the jury in so far as it awarded to the defendant exemplary damages, and also charges that the amount awarded is excessive. The proof shows that appellant, Hale, was a merchant, and that appellee, Barne...
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Annie Dean and Sarah Ferrell, joined by their respective husbands, brought this suit against John Wood and Daisy Maxwell and husband to recover their interest, as children, in the property of Jane Wood, deceased, their mother, alleging that John Wood and Jane Wood were husband and wife; that Jane Wood had died; that they and Daisy Maxwell were the only surviving children of the said John and Jane ...
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This suit was in trespass to try title by appellee against appellants to recover 9.8 acres of land in Karnes *Page 367
county, described in the petition. Appellee claimed title to the whole tract by conveyance from Robert King, deceased. Appellants claimed an undivided one-half of the land as heirs of Sallie King, their grandmother, who was wife of Robert King. Appellee alleged that Robert King w...
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This is a suit by appellee on three open accounts, one for $146.38 against appellant, another for $68.56 against Brown McWhorter, and the third for $258.64 against W. L. Brown Co. It was alleged that appellant had assumed payment of the accounts against Brown
McWhorter and W. L. Brown Co. The cause was tried by jury, and resulted in a verdict and judgment for appellee in the sum of $323.62.
Ap...
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This is an action by the West Texas Bank Trust Company, assignee of A. L. Del Cambre, F. M. Jones, I. M. Moore, Edwin Paschal, Hicks Woods, and W. C. Lott, against J. M. Ramsey to recover the sum of $1,412.06 commission earned by its assignors by the sale of a tract of land in La Salle county, Tex., as agents of the said J. M. Ramsey, and against W. C. Lott, as assignor and guarantor of the said ...
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Appellee brought this suit to recover of appellant damages for personal injuries received by him by being thrown from a passenger train while a passenger thereon. Defendant answered by general denial, pleas of contributory negligence, and a plea setting up that plaintiff had executed a release. A trial resulted in a verdict and judgment for $2,000 in favor of plaintiff, from which defendant appeal...
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The assignments of error are chiefly directed to overruling special exceptions to appellant's answer and supplemental answer and to the charge of the court and the refusal to give certain special charges. The assignments directed to overruling the special exceptions, with the exception of the sixth assignment, were presented by way of cross-assignment on the former appeal, and were decided adverse...
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Appellees sued appellant for actual damages resulting from the alleged improper conduct of one Brigham, employed by appellant. The claim was made that Janie B. Anderson, wife of George B. Anderson, while proceeding along Main street in the town of Denison, was assaulted by said Brigham, by him arrested, subjected to indignities, and her hand bag forcibly taken from her and searched, and she impute...
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Statement of the Case.
This suit was brought by the state of Texas, through its Attorney General, in the district court of Travis county, on the 7th of July, 1911, against appellant for a writ of mandamus or mandatory injunction to compel it to construct its line of railway through the town of Sherwood, the county seat of Irion county, and establish and maintain a depot ...
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In this case, while pending in the district court of Harris county, the district judge, on the application of the plaintiffs, granted a temporary injunction enjoining and restraining the defendants from doing certain things in connection with the management of the business affairs of the Congregation Adath Teshurum, a Jewish religious organization of which both plaintiffs and defendants are membe...
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The history of this case to a certain date is fully set forth in the opinion of this court found in Hallam v. Moore, 126 S.W. 908, in which a consolidation of this case with others was set aside and the district court ordered to try it separately from the others. In pursuance of that order the consolidation of the suits was canceled and appellant filed an amended petition, setting up a statutory a...
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This suit was instituted by Aggie Fant Ramsey and husband, L. O. Ramsey, and Lucille Fant South and husband, James B. South, against D. Sullivan, W. C. Sullivan, J. C. Sullivan and D. Sullivan Co., a copartnership composed of D. Sullivan and W. C. Sullivan, to require an accounting on their part of the amount of rents or profits received by them, or either of them, from a certain building in San ...
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T. M. White, appellee, brought this suit in the justice court of precinct No. 1, Midland county, against Barron Clark and J. H. Barron and Will Clark, individually, and in the alternative against A. C. Parker, to recover two months' rent of a building which he alleged was due under the terms of a lease by plaintiff to Morris J. Lynch, dated August 1, 1909. Plaintiff alleged that Lynch sold said l...
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B. H. CubDage, on September 1, 1910, sued W. H. King, R. S. Howard, J. Y. Rakestraw, and D. U. Rakestraw, composing the firm of Kinney County Lana Company, and Harry Landa, W. T. McCamp-bell, and Joe L. Hill to recover the sum of $18,000, the aggregate amount paid on contracts made by about 58 people to purchase tracts of land out of the Altito ranch lands in La Salle county, Texas; said claims...
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The appellee filed this suit in the court below against D.C. Driskell, Willis Driskell, and C. D. Lancaster. It is alleged that the appellee is the owner of the several tracts of land described in his petition; that on the 25th day of August, 1911, the Driskells and Lancaster entered upon his land and cut and removed therefrom timber and sawlogs amounting in value to $1,000; that they threatened t...
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Appellant sought a specific performance of the following written contract:
"The State of Texas, County of Tarrant.
"This agreement entered into by and between Sam Rosen of the county of Tarrant, state of Texas, hereinafter known as party of the first part, and M. Phelps, of Bosque county, Texas, hereinafter designated as party of the second part, Witnesseth:
"Party of the second part agrees to con...
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While G. H. Goodwin and wife were residing in Abilene, Tex., Mrs. Goodwin visited her mother, Mrs. M. E. Backus, whose home was in Meridian, Miss. During this visit Mrs. Goodwin became ill, and, being without money, had her mother to wire her husband that she was ill, and requesting him to send her $25 by telegraph at once. This message was received by the plaintiff on September 6, 1911. On Septem...
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Motion to strike statement of facts from the record. The appellee in this cause requests the suppression of the statement of facts in this cause, upon the following grounds: "(1) Because the law has not been complied with in the preparation and filing of said statement of facts, in that the stenographer who took the testimony on the trial of said case did not transcribe said testimony in the form ...
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The appellant, S. A. Overton, was the plaintiff in the lower court and sued the appellees, the Chicago, Rock Island Gulf Railway Company and the Chicago, Rock Island Pacific Railway Company, in the county court of Tarrant county for damages alleged to have accrued on account of the negligence of the appellees in the shipment of a car of horses and mules from Wellington, Kan., to Ft. Worth, Tex. ...
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In this case the plaintiff sued for and recovered the value of a horse alleged to have been negligently killed by the defendant. The plaintiff charged in his petition that his horse was killed by one of the defendant's trains, which was running at the high rate of speed of 45 miles an hour; that the defendant negligently failed to ring the bell or blow the whistle as a warning to the horse, which ...
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This is an appeal by George C. Denton and G. W. Suters from a judgment of the district court of Tarrant county, in favor of the Texas
Pacific Railway Company, wherein a "temporary writ" of injunction was awarded against appellants restraining them from soliciting business as transfer agents about the passenger station and trains of the complaining company. A decree appears to have been entered up...
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The town of Anson, a municipal corporation, instituted this suit against the appellant, S. J. T. Smith, to recover the sum of $513.05, alleged to have been collected by Smith as the town attorney and not accounted for. The items constituting the aggregate amount sued for were specified in a copy of a report to the town council, made by said Smith and attached to the town's petition as an exhibit. ...
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This was an action by Willie Wallraven, appellee, against the Galveston, Harrisburg San Antonio Railway Company, appellant, to recover $530 damages to a shipment of secondhand household goods, furniture, and wearing apparel, shipped by appellee over the appellant's line of railroad from San Leon to Galveston, in the county of Galveston, Tex. The case was tried in the county court without a jury, ...
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Appellant, a private corporation, brought this suit against Geo. W. Hill, seeking recovery upon a promissory note and the foreclosure of a deed of trust. Mrs. W. N. Breed was made a party defendant, the plaintiff alleging that she was asserting title to the land covered by the mortgage, and a foreclosure was sought as against both defendants. The defendant Hill filed no answer, but Mrs. Breed answ...
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Appellees, during the absence of Judge W. B. Hopkins, judge of the district court of Cameron county, applied to Judge Wm. Masterson, of the Fifty-Fifth district of Texas, for a temporary injunction to require appellants to desist and refrain from interfering with appellees' use of and rights in a certain irrigation ditch in Cameron county, Tex., and from interfering with plaintiffs in exercising t...
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This suit was brought by appellant against appellee to recover damages alleged to have resulted on account of his expulsion from one of its passenger trains. Upon the conclusion of the evidence the trial court instructed a verdict in behalf of appellee, which is assigned as error. No question is raised upon the pleadings; hence there is no necessity for outlining same. On the evening of the 12th o...
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We are informed by appellant in his brief that this case was instituted in the justice's court of Harris county by appellee against the International Great Northern Railroad Company, Thos. J. Freeman, receiver thereof, the Texas Pacific Railroad Company, Mobile
Ohio Railroad Company, and the St. Louis, Iron Mountain Southern Railroad Company, for $199.60, alleged to be due for damages caused t...
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The appellee, the First National Bank of Gainesville, Tex., sued appellant, H.R. Jones, in the county court of Cooke county, upon a promissory note, executed by appellant, payable to the order of the bank of Myra, a partnership, for the sum of $639.65; said note dated July 15, 1910, and maturing July 1, 1911, claiming to be the assignee and owner of same, by indorsement from the Myra bank. The app...
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In the month of August, 1911, appellant, Lloyd, shipped cattle from his home in Wise county to Ft. Worth in Tarrant county. After the sale of the cattle he proceeded to appellee's saloon, where he claims he became intoxicated, and the testimony is undisputed that he was so drunk he had very little recollection of the amount of money which he expended in the saloon and which he lost in a game of po...
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The Texas Company, a corporation, with its principal office in Houston, Harris county, owned what are termed oil and gas leases upon certain lands situated in Wichita county. The company instituted this suit to enjoin the tax collector, tax assessor, and the county commissioners of Wichita county from enforcing the collection of county and state taxes which had been assessed against the company up...
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The appellee sued appellant to recover damages to a certain lot situated in the city of Ft. Worth, alleging that the city had excavated the street in front of plaintiff’s lot in such manner as to damage his property in the amount claimed. There was a judgment against the city in the sum of $325, which it is sought to reverse on this appeal. There are three assignments of error presented, but al...
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The appellant in this case is a negro. He owned a lot in the town of Dayton, near the residence of the appellees. He made a contract with a carpenter to build a residence on this lot for a consideration of $400, $200 of which was paid in advance. The appellees, individually and collectively, determined that the house should not be built, and so informed the contractor, who had put a portion of th...
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We copy from appellant's brief the following substantially correct statement of the nature and result of the suit:
This suit was brought August 14, 1912, by the Troy Laundry Machinery Company, Limited, of Chicago, Ill., against J. R. Richie to recover the amount of 15 promissory notes, of date August 26, 1911, executed by him and payable to its order – one for $50, four for $75 each, and ten for $...
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Statement of Facts.
The nature and result of this suit, and the controlling question and the facts relating thereto, are correctly stated as follows in plaintiff in error's brief:
"This suit was brought November 3, 1911, by Isolde Zapp, as executrix of the will of H. W. H. Zapp, deceased, against the Fidelity Mutual Life Insurance Company of Philadelphia, Pa., to recover $5,000 principal, interest...
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This is the second appeal of this cause, the first having been made to the Court of Civil Appeals of the Second District, from the district court of Deaf Smith county, reported in 56 Tex. Civ. App. 472,121 S.W. 219; the judgment of the trial court, for the sum of $17,500, upon that appeal having been reversed by said appellate court.
The appellee claims to have received certain injuries, while a p...
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Appellant owned a farm of 650 acres in Milam county. In the fall of 1910, he made a verbal contract with appel-lee, wherein he rented to appellee 50 acres of said farm for one-third and one-fourth of the crop. The remainder of the farm was rented to five other tenants upon the “halves”; that is to say, appellant furnished the teams, tools, and feed, and these tenants ' were to cultivate the land ...
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The judgment against plaintiff in error was rendered on February 16, 1912, and notice of appeal was given. A supersedeas bond was given by plaintiff in error, which purports to have been filed on March 6, 1912. Nothing further was then done in connection with the matter until January 18, 1913, when plaintiff in error presented bills of exception and a statement of facts, which the county judge ord...
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S. Webb and L. H. Hill have appealed from a judgment in favor of B. F. Reynolds for the sum of $654.68 with foreclosure of vendor's lien on certain land. The suit was upon a promissory note executed by appellants in favor of Laura G. H. Torrence as a part of the consideration for a tract of land conveyed to appellants by the payee and indorsed to W. H. Stevens without recourse by A. C. Hensley, "a...
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Appellee, by motion, requests this court to strike out the assignments of error which are filed separate from motion for new trial. This case is appealed from the county court of Wilbarger county, Tex., which convened April 7, 1913, and adjourned April 26, 1913. At that term of the court, on the 24th day of April, 1913, appellee obtained judgment against appellant. The trial judge, on the same day...
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The grounds of appellee's motion, for the purpose of striking the statement of facts from this record, are the same grounds, literally recited in the same language, as were considered by us in the opinion on the motion in the case of Security Trust Life Insurance Company v. R. T. Stuart (No. 525) 160 S.W. 108, decided at this term. The statement of facts in this record is one prepared by the coun...
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On Motion to Dismiss Appeal.
This is an appeal from a judgment of the district court of said county probating the will of Lou Wyatt, deceased, and appointing appellee executor of said estate, and directing that letters testamentary should be issued to him. We gather from the brief and record that this case originated in the probate court of said county, wherein appellee pro...
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Appellants E. C. Tourtelot and T. D. Hogan filed this suit on the 21st day of September, 1911, in the district court of El Paso county, Tex., against appellee, L. E. Booker, to recover upon a judgment rendered in a district court of North Dakota. Trial was had before a jury upon plaintiff’s first amended original petition, the defendant’s answer, and the plaintiffs’ first and second supplemental p...
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This was a suit for damages for personal injuries suffered by plaintiff’s wife, Emma Loofs, alleged to have been sustained while alighting from a train of appellant at the town of Fairbanks, Harris county, on January 27, 1911. Appellee’s wife was a passenger on one of appellant’s trains from Houston, Tex., to Fairbanks, Tex., and alleges that she was injured in alighting from the train at Fairb...
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This is an action of trespass to try title to several lots of land in the city of Houston, instituted by Thomas Dryden, who died pending the suit, and the same was then prosecuted by his widow, R. Fannie Dryden, and his two daughters, Luella Lemon and Mary E. Corbly, each joined by her husband, against J. H. Makey and his wife, Jeannette Makey, Stanley Thompson, and Mrs. S. R Bruce and her husband...
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In this cause the appellee, the People's Home Telephone Company, sued the appellant, Lanius, in the justice court, upon open account, for telephone services, which account the latter admitted, except in so far as the same was defeated, in whole or in part, by the facts alleged in what he terms an offset or reconvention, alleging a negligent failure of the telephone company to render specific telep...
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Appellees filed suit in the court below against appellant, seeking to rescind the sale by appellant and purchase by appellees of a seven-passenger Moline automobile on the ground of fraud, and to recover the purchase price paid therefor. Ancillary to the suit attachment was levied upon the automobile at the instance of appellees by the sheriff of Dallas county, who took possession of same. Appella...
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The same being virtually concurred in by appellee, we copy the statement of the nature and result of the suit from appellants' brief, which shows that it was brought by appellee against appellants E. E. and J. M. Witt and W. J. Harlan, on a promissory note executed by them to appellee May 1, 1910, payable on or before January 1, 1911, for the sum of $1,016.40. Harlan made no defense, and judgment ...
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We adopt the statement of the case found in appellant's brief, as follows:
"This suit was brought by Sidney Smith, Jr., as plaintiff, against the following defendants, viz.: Birkner Beasley, a firm composed of Otto Birkner and D. K. Beasley; C. F. Gary, alleged to be a member of the partnership of Birkner Beasley, who denied under oath that he was a member of such partnership; P. G. Silber, alle...
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This suit was brought by appellee against appellants to rescind a contract of exchange of property, wherein appellee sold to appellants an automobile, for which appellants transferred to appellee certain vendor's lien notes. The grounds for a rescission were false representations made to appellee by T. B. Wharton, agent of appellants, in effect that said notes were executed as a part of the purcha...
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The suit is for damages for alleged negligent failure to deliver a telephone call. Mrs. Beulah Dominy and Hubert Rains were sister and brother. Hubert Rains died at Palestine, at his father's home, between 5 and 6 o'clock a. m. August 28, 1911. On that date Mrs. Dominy was visiting her father-in-law, John Dominy, at his residence about ten miles in the country from New Willard in Polk county. At a...
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The suit is by appellees Shelton and Muse against J. T. Atkinson, G. W. Atkinson, and G. C., Mark, and Edna Atkinson. The original petition was in the form of an action to remove cloud from title. On the original petition, and after service, an interlocutory judgment by default was entered against J. T. Atkinson. After the order of default against J. T. Atkinson was entered, an amended original pe...
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This is a motion by appellant to render judgment in its favor in accord with the judgment of the United States Supreme Court (229 U.S. 156, 33 S. Ct. 651, 57 L. Ed. 1129) rendered in this cause. At a former term of this court we rendered a judgment (148 S.W. 1099) affirming the judgment of the district court, and a writ of error was denied by our Supreme Court. In due time the Supreme Court of the...
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Conclusions.
The principal question presented by this appeal is whether or not appellee's petition states a cause of action. It is in substance an action to recover damages for mental anguish occasioned by the appellant's negligent failure to deliver a telegram to appellee's sister, where appellee was denied the comfort, solace, and assistance of her sister in her h...
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In this cause appellee the First National Bank of Amarillo was the plaintiff in the trial court and the appellant, J. W. Rush, was the defendant, and W. H. Fuqua, the other appellee, was the intervener.
The appellee bank sought judgment against appellant, Rush, on a note for $12,000 executed the 26th day of March, 1906, providing for 10 per cent. interest and the usual 10 per cent. attorneys' fees...
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This is an action for damages for personal injuries alleged to have been sustained by appellant in the city of Terrell on the 24th day of December, 1910, by falling off a bridge or trestle forming a part of appellee's railroad track in said city. The material facts, briefly stated, are as follows: The town of Terrell, being an incorporated town, in 1882 granted a franchise to the Texas Central Rai...
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Appellant filed this suit March 23, 1912, to recover on an accident insurance policy for total disability not exceeding 200 weeks, at $25 per week, as an attorney at law, alleging that the accident happened about August 20, 1909. The defendant, answering, pleaded that the policy upon which plaintiff sought to recover provided, first, that written notice should be given to the company as soon as mi...
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This is an appeal from the district court of Hale county, Tex. The judgment rendered in that court was for an amount of about $14,000, also foreclosing a lien on certain land. The appellants executed a supersedeas bond, in the sum of $32,000. The name of two sureties, J. O. *Page 338
Harrall and J. L. Overall, appear to be signed to the bond. There is one other surety thereon, T. J. Flake. The re...
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Appellee sued appellant, alleging that it operated a cotton gin in the town of Cooper, and that appellant operated in said town an oilmill, and that in July, 1911, it was agreed between them that appellee should purchase cotton seed for appellant from its customers during the season, 1911-1912, paying its own funds therefor at prices furnished by appellant, and that on delivery of the seed so boug...
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This suit was by the State National Bank of Shawnee (Oklahoma) against the Mallory Steamship Company for the recovery of 100 bales of cotton in possession of the steamship company; the Bank claiming title to the cotton. The Steamship Company impleaded McMahan & Co., who, by petition of intervention,' set up their claim to the cotton. By agreement the cotton was sold, the Steamship Company was dism...
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Mrs. Eva Perryman, as administratrix of the estate of L. M. Perryman, deceased, brought this suit against appellant to recover damages for the negligent killing by appellant of the said L. M. Perryman. The beneficiaries named in the petition were Mrs. Perryman, wife of L. M. Perryman, and her three minor children, Bessie Perryman, John C. Perryman, and Macy Perryman. The trial of the case before t...
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This litigation is dependent upon the construction to be given to a contract for the sale of certain land situated in Collingsworth county, providing for a forfeiture of $3,000 against the prospective purchaser in favor of the seller, and involving by virtue of this record the question of the performance by vendor of certain conditions stipulated in the contract, which, if performed, on account of...
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This is an appeal from an order of the judge of the district court of Cameron county, Tex., in vacation, granting a temporary injunction restraining appellants, Nettle G. King and W. 0. King, defendants below, from depriving appellees, plaintiffs below, of their alleged right to reasonable ingress and egress to and from *Page 416
the second story of a certain building owned by appellees in the to...
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On August 2, 1906, E. D. Polemanakos, ancestor of appellee, by a written contract, leased to appellants for five years, beginning September 1, 1906, at a monthly rental of $200 per month, a part of lots 1 and 2 in block 61, in the city of Houston, together with all improvements thereon. Appellants remained in possession of the premises and paid all of the rental installments thereon until April 1,...
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This is an appeal from an order refusing to dissolve a temporary injunction previously granted by the district judge of Bowie county. The city of Texarkana purchased a tract of land for the purpose of enlarging one of its cemeteries. On March 31st the appellees applied for and *Page 418
obtained a temporary injunction prohibiting the use of the land for the purposes of a burying ground. It appear...
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This is an action of trespass to try title, instituted by the appellant, Blount, against the appellees, Henry and wife. It appears from the evidence that Blount held the paper title to the land in controversy, and that Henry and wife claimed to have acquired a title to 100 acres by 10 years’ adverse possession. On trial the court charged that the appellant had shown title to all of the land sued ...
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Appellee sued J. B. Wilson, as owner, and Alex Watson Construction Company, contractor, of a certain building to recover for material furnished one Hieatt, a subcontractor working under the original contractor, Alex Watson Construction Company, and to foreclose the materialman's lien. The defendant Alex Watson Construction Company replied by original answer, and the defendant Wilson by second amen...
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Appellants sued appellee to recover a piano, in the county court of Tarrant county. Appellants are dealers in pianos in New York, and on the 22d day of November, 1910, appellants, apparently in response to a letter from J. C. Polk, stated, "Since you wish to receive the piano in a month or so, we suggest you place your order with us now," to prevent a rush. After describing the piano as "very beau...
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Mrs. Mattie E. Tunstall, a widow, brought this suit for herself and as next friend of her minor daughter, Gertie L. Tunstall, to recover of appellant for a nuisance created by the erection of a planing mill near the residence of appellees.
Plaintiff alleged: "That, while they were in the quiet and peaceable enjoyment of their home, on or about the 1st day of February, 1911, the defendant corporati...
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Appellee, on May 21, 1912, recovered judgment against appellant for $225, with interest thereon from date of judgment at the rate of 6 per cent. per annum, as damages sustained by him on account of delay in transporting a certain trunk as baggage from Houston, Tex., to Boston, Mass. The trunk contained wearing apparel belonging to appellee, who on December 20, 1910, purchased from appellant a tick...
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Appellee sued appellant to recover the value of a building owned by him and destroyed by fire originating from sparks emitted from one of appellant’s locomotives while the same was being operated along appellant’s railroad track near Winns-boro, Tex. The building was situated partly upon appellant’s right of way, was built for a storehouse, but was unused and unoccupied at the time of the fire....
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This appeal is from a judgment against appellant, in favor of appellee, for $5,000, the sum he was entitled to because of personal injuries suffered by his wife, without fault on her part, as a result of negligence on the part of appellant in failing to stop its train at the station to which she was a passenger, for a length of time reasonably sufficient to enable her to alight therefrom, and in c...
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Appellant brought suit to recover of appellee the sum of $750 damages for the burning of certain personal property, caused by the emission of sparks and cinders from one of its engines. Appellee answered by general denial; that it had engines equipped with the most approved spark arresters, which were in good condition, that it had used ordinary care in inspection, and that the engines were prope...
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Appellee, Scott, in his petition, alleged that: On the 2d day of January, 1912, he was in the employment of appellant railway company as a section hand, and as such engaged with five other men in laying switch ties in the town of Gainesville, all working under the direction of a foreman, and, with three other hands, appellee was directed by his foreman to move one of the switch ties. That the tie ...
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Appellee sued appellants in the county court of Collin county to recover damages to a car of fruit and vegetables shipped over the lines of appellants from Lindale to McKinney, due to delay and rough handling, and recovered judgment against both appellants. The verdict of the jury is supported by the evidence.
It is urged on appeal that the court erred in overruling the special exception of appell...
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This suit was brought in the district court of Harris county, Tex., by appellee, Richard Smith, to recover damages for personal injuries alleged to have been sustained in the service of the Houston Car Wheel
Machine Company on or about the 15th day of May, 1911. The cause was submitted to the jury on April 26, 1912, and the jury returned a verdict in favor of appellee for the sum of $8,000. Upon ...
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J. W. Kuykendall instituted this suit on December 13, 1910. On March 25, 1912, his wife, Mrs. Olivia Kuykendall, became a party plaintiff, adopting the allegations of her husband's first amended original petition, upon which the case was tried. It was alleged, in substance, that on May 25, 1910, appellee Kuykendall made a written contract with the appellant, C. A. Benton, by which appellees sold t...
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This suit was instituted by defendant in error, and the cause was tried on June 23, 1911. The writ of error bond was filed on April 23, 1912, and on July 19, 1912, the assignments of error were filed, and on July 22, 1912, the transcript was filed in the Court of Civil Appeals in Galveston. The brief for plaintiff in error was filed on September 24 1913.
Plaintiff in error has not copied an assign...
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Appellees sued appellant in the court below for the value of their residence and certain household furniture and appurtenances of the alleged value of $937.60. It was charged that the house and contents were destroyed by fire set by sparks from an engine in use on defendant's road, resulting from the fact that the engine was improperly and defectively built and constructed and carelessly and negli...
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This is upon motion to reinstate this cause, which, at a previous day of this term, was dismissed (no written opinion filed) upon motion of defendant in error because the petition for writ of error was not signed by the petitioners or their attorney, as the law requires. We find that no motion to dismiss the appeal was filed within 30 days after the transcript was filed in this court, as required ...
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On Rehearing. Appellant criticizes the statement in the original opinion of the scope of the assignment of error, urged. Our statement of the complaint made was based upon the bill of exception, to which we are referred by the assignment, and the bill of exception complains of the exclusion of testimony, as stated in the opinion. However, the propositions presented in the brief do not relate to al...
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For a statement of the appellant's petition and the facts, we accept the statement as made in his brief:
"Plaintiff alleges in his petition: That while his son, Oscar, was trying to board one of defendant's freight trains at Thackerville, Okla., for the purpose of coming to Gainesville, Tex., his foot was mashed and broken. That his said son at once sent for a physician, but that the messenger was...
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Appellee, T. S. Walker, sued appellant, H. C. Carter, for the value of a horse belonging to Walker, and alleged that appellant's servant was negligent in driving his car at a high rate of speed on one of the streets in San Antonio; that appellee was driving along in his buggy, and in order to avoid being struck, or having his horse struck, by appellant's car, he jerked his horse around and threw i...
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Findings of Fact
1. This suit was brought by appellant, the state of Texas, against the appellees, the St. Louis Southwestern Railway Company of Texas, the Missouri, Kansas Texas Railway Company of Texas, and the Trinity Brazos Valley Railway Company, to recover of each of them penalties for the violation of the orders of the Railroad Commission of Texas, in reference ...
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The West Lumber Company brought this suit against J. W. Groce and R. B. Eglin, partners, composing the firm of Groce Eglin, alleging that on the 10th day of June, 1910, plaintiff and defendants entered into a verbal agreement by the terms *Page 520
of which the defendants were to purchase certain timber standing and growing on plaintiff's land in Polk county out of which defendants desired to ma...
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This is an appeal from a judgment for damages on account of injuries received by appellee in falling down an elevator shaft, which he mistook for a door, through which exit could be made from appellant's depot building.
Though there are six assignments of error, they all relate to the same point, viz.: The refusal of the court to peremptorily instruct the jury to return a verdict for appellant, as...
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On a former appeal the facts of this case were clearly stated, as reported in 149 S.W. 790, to which reference is made. In this opinion we will make such additional statement as may be required in considering the several assignments presented in appellant's brief. The pleadings of the appellee alleging her residence to be in New Mexico set out the message and allege that the defendant contracted t...
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Appellees have filed in this court a motion to affirm on certificate. The motion is accompanied by a certificate of the clerk containing a copy of the judgment and order of the court overruling the motion for new trial, and reciting the fact that notice of appeal was given, but no copy of the appeal bond has been sent up. However, the clerk has certified that an appeal bond has been filed and appr...
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(after stating the facts as above). 1. The first assignment of error complains of the refusal of the court to give special charge No. 3. Appellant does not comply with the rules as to this assignment, for the reason that it does not copy in its brief all of the charges requested, and hence this assignment will not be considered. However, we will state that there was no error in the court’s refu...
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This is an action of trespass to try title to the Nancy Cooper survey of 640 acres of land, instituted by the appellants against the appellee in the district court of Newton county. It is the second appeal in this case; the former is reported in 132 S.W. 808. The case had been carried to the Court of Civil Appeals of the First Supreme Judicial District by the defendant, appellee in this appeal, an...
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The town of Silverton, the county seat of Briscoe county, Tex., is situated on section No. 20, block A, Arnold Barrett survey. Section No. 96, block B-l, Beatty, Seale Forwood survey is situated directly east and adjoining survey No. 20. In June, 1892, by virtue of an order of condemnation of the commissioner's court of Briscoe county, a jury of view, assisted by one Waller, the county surveyor ...
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Findings of Fact.
On May 29, 1909, appellant executed to appellees a note for $100, payable 12 months after date. At that time appellant was not indebted to appellees. Appellant was a farmer, and appellees were merchants. The note was executed as a basis for credit to be extended to appellant by appellees for the year 1909, both parties estimating that $100 would be th...
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The judgment as entered in this case fails to make disposition of the title to the land, placed in controversy by the petition of the plaintiff, and the question is thereby presented of whether such judgment, in view of the pleading, can be characterized as a final one. Such question, raised on our own motion, must first be determined, for, if the judgment is not legally a final one, this court, u...
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This suit was instituted by J. W. Garrow and others, heirs of John T. Brady, deceased, in form of trespass to try title to 18.41 acres of land, against Frank Taylor, Dorothea Eggert, Emma Pruett, and J. Wade Cox.
Defendant Cox answered by plea of not guilty, general denial, an assertion of title to the land described in plaintiff's petition, pleaded ten years' statute of limitation, and that if pl...
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Appellant sought by this suit to restrain the sale by appellees of certain land under a power of sale given in a deed of trust. A temporary injunction was granted, which, upon answer being filed, was dissolved. An appeal was taken and decided adversely to appellant by this court (See 151 S.W. 845), and a writ of error denied by the Supreme Court prior to the trial upon the merits in the lower cour...
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This suit was brought by the surviving wife and children of Peter Parcarello against the American Express Company for damages arising from injuries resulting in death, under the second subdivision of article 4694, Revised Civil Statutes of 1911. The deceased received the injuries from which death ensued by being *Page 928
thrown from a wagon In which he was sitting on Main street in the city of H...
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Appellee, plaintiff below, in his amended petition upon which the case went to trial, alleged: That about November 10, 1910, he entered into a written contract with J. L. Mathews, A. F. Bonzer, Anton Wohlwand, Frank Jahoda, and J. A. Cotchian, defendants, for the purchase of 8 fractional sections of land, 11 entire sections, the unsold portion of a fractional section, and the unsold portion of a s...
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This was an action brought by Minnie M. Davidson against the El Paso Electric Railway Company to recover damages of the defendant for the death of T. F. Davidson, plaintiff's husband. The plaintiff alleged in her petition that on or about the 30th day of August, 1912, while her husband was attempting to cross the defendant's street railway tracks on Stanton street in the city of El Paso, Tex., in ...
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On Motion for Rehearing.
It is insisted that the sheriff’s return does not show legal service of the citation in error upon the defendant in error, A. H. Belo & Co., and a rehearing should be granted and this cause stricken from the docket of this court for want of . jurisdiction. The sheriff’s return indorsed upon the citation in error (omitting the signature of the sheriff) is as follows: “Came ...
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Appellee sued for and recovered damages in the sum of $428.32, alleged to have accrued by the negligence of *Page 944
appellant in the transportation of certain goats from Uvalde, Tex., to Don Luis, Ariz. There was a trial by jury resulting in a verdict and judgment for appellee in the sum mentioned.
The first and second assignments of error complain of exceptions being sustained to that part of ...
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Findings of Fact.
Appellee brought suit to recover damages against appellant for failure to furnish water for irrigation purposes, as per contract. The undisputed evidence shows that appellant and appellee entered into a written contract, whereby appellant was to lease to appellee 600 acres of land, belonging to it, for the year 1910, and was to furnish the seed for planting the same in rice and ...
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In October, 1909, the appellee Beasley instituted this suit against the Marshall East Texas Railway Company and the appellant, Missouri, Kansas Texas Railway Company of Texas, for damages for personal injuries sustained. The petition alleges that on the 28th day of August, 1909, the appellee was in the employ of the Marshall East Texas Railway Company as an engineer on one of its passenger trai...
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On April 19, 1912, S. J. Dodson recovered judgment in the county court of Deaf Smith county, against E. W. Harrison, in the sum of $155, from which judgment Harrison appealed to this court, and on December 14, 1912, the judgment was affirmed for $106, provided the overplus was remitted by appellee within 30 days. This remittitur was entered in this court on January 18, 1913, judgment was affirmed ...
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In so far as the proper disposition of this case is concerned, we deem it necessary to consider only the following facts: Mrs. R. J. Riley and her deceased husband, A. M. McCallister, were the owners of about 700 acres of land, community property, in two tracts. The homestead of Mrs. Riley and her deceased husband was situated upon one of these tracts, and she continues to occupy the same as a hom...
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This is a suit instituted by appellant against R. E. Brooks, John Marbach, W. F. Miller, and F. J. Rheiner to recover the sum of $5,000, alleged to have been borrowed by them on or about April 27, 1910.
*958Appellees, except Rheiner, pleaded the statute of frauds, in that the promise alleged was not in writing; denied that they borrowed the money, alleging that it was loaned to the Del Carmen Mini...
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Appellee recovered verdict and judgment in the court below against appellant for $6,000 for personal injuries alleged to have been negligently inflicted upon him by appellant by striking appellee with one of its engines while he was passing over and across appellant's platform and tracks in Denison, Tex., on the way to take up his duties as a locomotive engineer for appellant, from which judgment ...
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Findings of Fact.
Appellee J. B. Lewis, who was named as independent executor in the joint will of Peterus Paulus Wolnitzek and his wife, Franciska Wolnitzek, executed April 6, 1903, made application to the county court of Austin county for the probate of same. As appears from the final pleadings of appellants, they contested the probate of said will on the ground that...
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This is an action for damages alleged to have arisen from personal injuries inflicted upon appellee through the negligence of appellant. It was alleged that appellee was in the employment of appellant and engaged "in loading and unloading and handling of light casing to and from wagons and pipe racks"; that while engaged in loading 10-inch pipe, from 17 to 21 feet in length and weighing 45 pounds ...
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R. M. Taylor, the appellee, brought suit for damages against appellant, the Ft. Worth Denver City Railway Company, for injuries received by his wife while *Page 969
a passenger on one of appellant's trains. The ground of negligence alleged is that the station was not announced or opening sufficiently convenient made for the exit of passengers, the train being a vestibule one and no announcement ...
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This is an action to recover the title and possession of 320 acres of land situated in Trinity county known as the J. E. Adams survey, and damages for the value of timber cut and removed therefrom. The suit was instituted by A. J. Adams, a son of the original grantee, joined by the minor children of one of his deceased sisters, who sue by their father, as next friend. All of the plaintiffs in the ...
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A. Skolant and H. Winkler, defendants in error, on May 27, 1910, sued the unknown heirs of George T. Howard, Charles McCormick, Richard Forrester, and Elizabeth Crockett to remove cloud from the title to Survey No. 306 in Bexar county, located by virtue of certificate No. 428, issued to David Crockett by James S. Gillett, adjutant general, on March 13, 1852. The first field notes to the land were ...
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This is an appeal from the district court of Tarrant county, from a verdict and judgment in appellee's favor for $4,000. At the time of appellee's injuries, he was the operator of a machine in appellant's plant, used for the purpose of cutting leather washers, the leather being placed by hand under the cutter fixed in the end of a perpendicular shaft, and the machine set in motion for the purpose ...
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This action was brought by appellant Bute to recover the principal and interest due on certain notes, aggregating $3,500, to foreclose the vendor's lien on the land sold, and for which the notes were executed as consideration, against H. G. Williams, C. C. Waller, and C. F. Bates, defendants.
Plaintiff alleged that on June 29, 1910, defendant Waller executed and delivered to defendant H. G. Willia...
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This suit was brought by against the appellant Guy G. Swan individually and as executor of the estate of Milton J. Swan, deceased, and against Mrs. Swan, the wife of said Guy G. Swan, Charles E. Swan, Katherine Mary Frazier and her husband, Rex D. Frazier. The petition alleges, in substance, that plaintiff and defendants are the owners in fee simple of a tract of 426 2/3; acres of land in Waller c...
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Charles W. Taylor and his wife recovered a judgment for the sum of $500 against the Western Union Telegraph Company, and the latter has appealed. The basis of the plaintiffs' suit was the failure of the defendant to send and deliver a telegram in time to enable Mrs. Taylor to attend the funeral of her mother. The telegram read as follows: "San Angelo, Texas, Dec. 2, 1911. Mr. Buford Taylor, Kempne...
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On Motion for Rehearing. It is urged in the motion that this court decided the case upon controverted facts. In this statement appellee is in error. The ease was disposed of on what we considered the uncontroverted facts. In addition to our former statement, we think 'the written agreement evidenced the facts that all the vendor’s lien notes were in the bank, subject to Frazier’s control, and that...
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Henry Beatty, appellee, brought this suit in the justice court against Almon Cotton and G. E. Cotton, appellants, to recover for usurious interest alleged to have been paid by him to appellants. A trial in the justice court resulted in a judgment for appellee, from which an appeal was prosecuted by appellants to the county court, where, on a trial before the court without a jury, a judgment was ag...
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This suit was brought by appellee against appellant to recover the sum of $114. The cause of action is alleged in plaintiff's petition as follows: "That on or about July 24, 1912, plaintiff shipped to Galveston, Tex., one car of watermelons; that said car arrived in Galveston on the 24th day of July, 1912; that on the morning of the 25th day of July, 1912, plaintiff paid the freight money due on s...
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This is an action of trespass to try title, brought by the appellees Mary E. Drumwright, joined by her husband, and John O. tBanks, seeking to recover a tract of land situated in Newton county from the .appellant, Houston Oil Company of Texas. At the instance of the appellant, the administrator of the estate of Mark Wiess was made a party to the suit, and a judgment sought over against the estate ...
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Appellees, who are land agents, telephoned appellant, Wilson, asking him what he would take net for a 184 2/3-acre tract of land out of section 7, Texas New Orleans Railway survey. Appellant replied he would take $10 cash per acre, and would consult two other parties who were joint owners with him as to the price they would take. They agreed to the proposition to sell for $10 cash, and appellees ...
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Appellant prosecutes this appeal from a judgment rendered against it *Page 1020
for the sum of $7,000 in favor of the minor children of W. A. Dozier, Sr., who was killed by a passenger train of the appellant on September 27, 1911, near the town of Harrisburg, between the cities of Houston and Galveston. Appellant's line of railway between the cities mentioned crosses a public road running north a...
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Findings of Fact.
This is a suit by C. T. Lawson for himself and as next friend of his minor son, Walter Lawson, against appellee, to recover damages for personal injuries to said minor by reason of alleged negligence of appellee. At the date of the injury Walter Lawson was nearly 19 years old; he was well grown, and was a bright and intelligent boy, and had had some e...
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(after stating the facts as above). [1] 1. We think the trial court ruled correctly in holding that the instrument referred to was a deed, executed for the purpose of conveying title, and was not a will. In McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S.W. 484, Id. 89 S.W. 284, this court was required to construe an instrument in the form of a deed, which contained this language, "This deed is to...
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This is a personal injury suit, the trial of which resulted in a verdict and judgment for the plaintiff for $15,000, and the defendant has appealed.
On the occasion in question the plaintiff was switch foreman in the defendant's yard at the town of Hearne, and while he and the other members of the crew were attempting to place an engine and tender on the main track of defendant's road by running i...
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Appellee brought this suit to recover damages for injuries suffered by him while in the discharge of his duties as switchman in the employ of appellant at Hearne, on December 8, 1911, on account of being thrown from and run over by a switch engine upon which he was riding, occasioned, as alleged, by false and improper signals given to the switch crew by the towerman in charge of the interlocking t...
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Plaintiff in error sued defendant in error for a balance of $150, alleged to be due it on a contract to furnish certain cement stone, to be used in finishing his residence and garage in Waco, in accordance with the plans and specifications of M. W. Scott, as well as for extra material furnished to him, and used thereon, but not specified in said contract, amounting to $642.15, aggregating the sum ...
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We copy the following statement of the nature and result of this suit from appellant’s brief: “The land in controversy in this ease is an island about 400 yards long and 250 yards wide, and "a sand bar about 300 yards long and 150 yards wide, both situated in the bed of the Colorado river, a navigable stream, and within the limits of the city of Austin. Appellant, the state of Texas, and its le...
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Findings of Fact.
Appellant and appellee were married December 5,1889, and were divorced August 19, 1911. No disposition was made of the community property in the divorce suit. Appellee brought this suit for the partition of eight tracts of land, alleging that they were community property, and also for the partition of certain personal property, consisting principally ...
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Emma Dillard, surviving wife of J. R. Dillard, deceased, instituted this suit in the county court against a body designated in the pleadings as "Grand Lodge of Free and Accepted Masons of Texas," to recover $249.23 alleged to be due her on a certain benefit certificate issued to the said J. R. Dillard as a member of a local lodge in said order, in which certificate plaintiff was named as beneficia...
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This is a proceeding brought under articles 3775 and 3777, R. S. 1911, against J. B. Burns, as sheriff of Shelby county, and the sureties on his official bond, and S. H. Matthews as a deputy sheriff, for neglecting to make return of an execution, and for failing and refusing to pay over money collected under an execution. Judgment was rendered by the court for the amount of principal, interest, a...
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The suit was to try the title to the northwest quarter of a league of land in Sabine county granted to A. E. C. Johnson and by him conveyed to A. A. Lewis. Appellant, plaintiff below, claimed, through mesne conveyances, under a deed dated March 7, 1843, from John Boyd, as administrator of said Lewis' estate, to Wm. Clark, Jr. Appellees, defendants below, claimed under deeds made by heirs of said L...
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The Pecos Valley State Bank brought this suit, seeking recovery upon a certain promissory note executed by Melville A. Davis and R. T. Davis in the sum of $582.25, together with foreclosure of chattel mortgage liens upon certain personal property, the value of which was not stated in the petition. Error is assigned to the failure of the court to sustain a general demurrer to the petition upon the ...
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The following sketch will aid in understanding the material facts of this case:
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]
From the above sketch it will be seen that appellant's right of way is fenced on the northwest side, but is not fenced on the northeast side, except for about 75 yards from the river. There is an embankment or dump near the river, some six or seven feet high, e...
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Keys executed two promissory notes, each, for the principal sum of $100, in part consideration for a tract of land purchased by him from G. M. Leverett, and upon which land a vendor’s lien was retained to secure payment of the notes. Thereafter the land was sold by Keys to Jno. T. Carter; by Carter to Oris Hardwick; by Oris Hardwick to E. R. Hardwick; by E. R. Hardwick to W. W. Watson; by W. W. Wa...
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On April 20, 1910, William Linden filed in the district court of the Sixty-Seventh judicial district in Tarrant county his original petition asking for a writ of injunction to restrain H. C. Cantrell, as constable, from selling certain described real estate which had theretofore been levied on by virtue of a writ of execution issued out of the justice court. Mrs. Withers was also made a party defe...
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Appellee, Paul Wills, by next friend, sued appellant, E. W. Copley, in the district court of Dallas county for damages for personal injuries alleged to have been inflicted by the bite of a monkey while appellee was a patron of a combination motion picture theater and museum conducted by appellant in the city of Dallas, Tex., and at trial before the court recovered judgment. He alleged that while i...
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J. H. Thigpen purchased tickets to San Antonio for himself and wife, S. V. Thigpen, from appellant's agent at Saspamco, a flag station, intending to take the train passing said station at 6:30 a. m. The agent signaled the train, but it failed to stop. Saspamco is on the line of appellant's railway between Floresville and San Antonio, being 11 1/2 miles from Floresville and 18 1/2 miles from San An...
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This is a suit instituted by appellee against Fred Mauritz to recover the value of certain hay on 400 acres of land, which it was alleged appellee had sold to Mauritz. The latter answered that he had bought the hay for appellants, of which firm he was a member, and he asked that the firm be made a party, and that he be dismissed from the suit. Appellants appeared and answered. The cause was tried ...
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Refugia Rodriguez recovered judgment by default against American National Insurance Company for $302, with 6 per cent. interest thereon. Citation was served upon Elmer N. Woodruff, local agent of said company.
The assignments of error all question the sufficiency of the service to sustain judgment by default, because the same was had upon a local agent, the defendant being an insurance company, du...
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This suit was brought by defendant in error, Richard Teel, against the plaintiff in error, Hannah M. Blair, and her husband, Frank Blair, Jr., to recover the sum of $1,076.89, with interest thereon from February 4, 1908, at the rate of 10 per cent., and 10 per cent. additional as attorney's fees. The $1,076.89 sued for is the balance due on February 4, 1908, upon a promissory note for the sum of $...
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This suit was instituted by the defendant in error W. J. Thurmond against the plaintiff in error by the filing of an original petition, which was amended on November 9, 1911, charging fraudulent misrepresentations in the sale by way of a trade of a farm for a stock of drugs, and praying for a rescission and injunction, and in the alternative for damages. A temporary injunction was issued, and the ...
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The appellee, Mrs. C. A. Simmons, on or about the 3d day of September, 1911, was a passenger on appellant's train going from Greenville, Tex., to Cash, Tex. When the train arrived at Cash, the appellant used a box or stool placed upon the ground for passengers to step upon in alighting from the train. Mrs. Simmons, in alighting from the train, stepped on the box, and it tipped or turned over, thro...
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This case was appealed from justice court, precinct No. 7, Matagorda county, to the county court of said county. By petition filed in the county court, Hill, a merchant, sought to recover of Powell, who was a blacksmith, certain items of damages, alleging that he took his horse, which he used every day to draw his delivery wagon, and which was worth $150, to defendant for the purpose of having him...
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May 6, 1909, appellant contracted with Hood county to construct a steel bridge across the Brazos river. The bridge was to be completed and ready for inspection on or before November 6, 1909, "allowing," it was recited in the contract, "a reasonable amount of time in case of unavoidable delays in shipping by reason of high water, accidents in construction, strikes, or any other cause beyond the con...
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This is an action of trespass to try title and for the possession of a certain lot of land consisting of about one acre of land in Hunt county, Tex., brought by the plaintiff, J. D. McBride, against the Farmers'
Merchants' Gin Company, a corporation, and W. H. Gandy. The plaintiff, among other allegations, alleges that on or about the 10th day of November, 1882, he was the owner of the tract of l...
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The deed from Dennis Pyle and wife to Green Pyle, under which the appellants claim title, is a valid conveyance on its face of a 16 1/4-acre tract of land of the Hart survey. The deed was also duly registered at the time of the conveyance of the 47 1/2-acre tract by the heirs of Dennis Pyle to R. M. Rowland, under which the appellee claims title. But giving proper legal effect to the calls in the ...
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Lissauer Co. sued Dromgoole Co. in justice's court, precinct No. 1, of Bexar county, upon sworn account for $162.98, which was denied under oath of Dromgoole Co.; they admitting an indebtedness of $63.87. Upon trial before a jury verdict was returned in favor of plaintiffs for $56.78, and judgment entered accordingly, from which plaintiffs appealed to the county court of Bexar county for civil ...
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Appellant, Branch T. Masterson, brought this suit in the district court of Harris county against F. E. Pye, J. O. Ross, and Peters Bros., the latter being a partnership composed of H. W. Peters, Lee Peters, Albert Peters, and Ernest Peters, for the recovery of an interest in a series of vendor's lien notes given by Peters Bros. to Pye for part purchase money of a tract of land commonly known as th...
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The suit resulting in the judgment from which this appeal is prosecuted was commenced by appellee against Fleming
&
Roberson, alleged to be a copart-nership composed of Lee Fleming and A. C. Roberson, by a petition filed September 15, 1908. It was to recover §950, as the market value of certain furniture owned by ap-pellee, which she alleged said Fleming & Roberson had unlawfully con...
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The statement of the case taken from appellant’s brief is: “This suit was instituted by appellee in the Fourteenth judicial district court of Dallas county, Tex., on January 23, 1909, for damages on account of personal injuries alleged to have been sustained by appellee on December 8,1908, while attempting to board one of appellant’s cars at a point on McKinney avenue where said avénue is interse...
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Appellee sued appellant in the district court of Dallas county to recover damages for delaying the transmission and delivery of two telegrams, one forwarded from Houston, Tex., and one from Aquilla, Tex., announcing the death of his mother, and inquiring whether he would attend the funeral and recovered verdict and judgment for $500, from which this appeal was taken. The petition charged that appe...
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This case is presented in this court upon an agreed statement of the pleadings and the facts. The first paragraph of the agreement relates to the pleadings, and the remainder is as follows:
"Second. The following facts were proven: That on January 30, 1910, Edmund Rodgers, now deceased, executed his five certain promissory notes of that date, payable to the Sturgis National Bank or order, as follo...
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Appellant, a corporation, owned a secret formula for compounding a syrup used to make a drink called “Jersey-Creme.” McDaniel Bros. & Co., a copartnership, were engaged in the business of bottling such drinks and. selling same in case lots to dealers. December 7, 1906, the parties entered into a contract as follows:
“Contract.
"Office Jersey-Creme Company, Fort Worth, Texas.
“Aut...
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The plaintiff, W. E. Woodruff, plaintiff in error here, sued the defendant, J. N. Taub, on a contract for the construction of a residence. He alleged that he had practically completed the work, when the architect of the building unjustly and wrongfully ordered him to do over work which had been done according to the contract and had been accepted by the architect, and he refused to do it and left ...
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The appellee instituted this suit against the appellant, J. W. May, to recover damages for the conversion of mortgaged property. It was alleged, in substance, that on and prior to September, 1911, Jones Pitman, a firm composed of W. A. Jones and W. H. Pitman, were indebted to appellee in the sum of $3,936; that this indebtedness was based upon an advance of money made by the appellee to Jones Pi...
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In 1907, a firm styled Wood Bros. obtained a judgment against J. J. Smith in a justice of the peace court. Thereafter Wood Bros. transferred the judgment to H. C. Gillean, and on August 4, 1909, Gillean caused a pluries execution to be issued upon the judgment and placed in the hands of W. L. Peevehouse, a constable, and levied upon an automobile and motorcycle then in the possession of J. J. Smit...
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This is a suit instituted by appellee against appellant to recover damages for the conversion of certain parts of a gasoline traction engine. Appellant filed a plea of privilege to be sued in Bexar county, general and special exceptions, general denial, and special answer. The cause was tried by jury and resulted in a verdict and judgment for appellee in the sum of $350.
Appellant seeks to raise t...
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Appellee Shinn, the plaintiff below, sued the appellant for damages alleged to have occurred on account of being struck by overhanging telephone wires across the track and right of way of the appellant railway company while he was in the discharge of his duties as head brakeman, standing upon the top of one of appellant's box cars in a train passing through the town of Higgins, also negativing, in...
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This suit was filed by Jas. H. Lieber to recover from B. P. Nicholson, W. J. Sames, and J. R. Moore earnest money paid upon a contract to sell real estate, and certain other sums of money claim, ed to have become due to the plaintiff by reason of the contracts between the parties covering said sale. The original contract of sale was dated March 1, 1910. It recited the receipt of $500 and the agree...
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This suit was brought by appellee against appellant and the Missouri, Kansas Texas Railway Company of Texas to recover damages. The court instructed a verdict for the last-named road. Appellee alleges that his wife bought a ticket July 3, 1911, at Dallas, Tex., of the Missouri, Kansas Texas Railway Company of Texas, to Gatesville, Tex., and return via the selling lines from Dallas to Waco, and t...
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Appellees, Landrum and Craig, sued appellant Terrell and W. F. Watson to cancel four promissory notes for $250 each, interest and attorney's fees, executed by plaintiff to defendant Terrell for the purchase price of 133 hogs. It was alleged, in substance, that the bunch of hogs purchased were hogs defendant Terrell had just purchased from one E. S. Perryman, and said Terrell was to deliver said ho...
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In its petition appellee, the plaintiff below, alleged that it was a corporation under the laws of Tennessee, and that its principal office and place of business was in the city of Nashville, in said state. It then alleged “that on or about the 21st day of April, 1910, and on divers and sundry dates thereafter, plaintiff, at the special instance and request of the defendant, sold and delivered to ...
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Appellee, as administratrix, for the benefit of herself and her three minor children, brought this suit against appellant to recover damages on account of the death of her husband, Chas. Beezley, the father of said minors. It is alleged that he was killed at Lometa on August 18, 1911, while engaged in the employ of appellant as a freight brakeman on a train of cars, which he was undertaking to unc...
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Appellant Smith brought suit against appellee McGlothlin to recover on a vendor's lien note for $200, and to foreclose the lien on a certain tract of land deeded by J. W. Thompson to McGlothlin, and which note was transferred to appellant Smith by said Thompson.
McGlothlin answered, vouching in J. W. Thompson, Amanda, John T., Luther, Earnest, and Annie Smith, the last a minor (these Smiths no kin...
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The suit is to recover the price paid for four railway tickets, and for damages alleged to have been wrongfully suffered by appellee, his wife and two minor children, occasioned by the refusal of appellant, through its conductor, to take and transport them as passengers on its regular passenger train from Pittsburg to Big Sandy. The jury returned a verdict in favor of the appellee for the price...
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Findings of Fact.
Appellant made a verbal contract with the appellee, by which he agreed to give him 4 per cent. commission on the sale of a tract of land, price $100 per acre, amounting in the aggregate to $12,500. Appellee found a purchaser and showed him the land, and the purchaser offered $97.50 for it per acre. Subsequently appellant, with knowledge of the fact th...
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The agent of appellant and appellee J. R. Marr owned certain vendor's lien notes to the amount of $1,500, being equal owners in said notes. Said notes being in the possession of the agent of said Lumber Company, Marr instructed him to sell them, and apply the proceeds to the payment, first, of the note herein sued on, on which J. R. Pope was surety, and the balance to an account owing by said Marr...
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This ease was tried upon an agreed statement of facts, as follows: “It is hereby agreed by and between all the plaintiffs and all the defendants herein that this ease be tried on the following agreed statement of facts, and no other, to wit: It is agreed that the note herein sued on is a binding obligation against all the defendants herein, and that judgment may be rendered for the amount thereof...
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Findings of Fact.
On April 4, 1907, the Valley Route Town Site & Loan Company sold and conveyed to J. A. Bangle lot 17 in block 78' in Teague, Freestone county, in consideration of his three vendor’s lien notes for $87.50 each, payable one, two, and three years after date. This suit was brought on the last of said notes and to foreclose said lien. On July 18, 1910, said Town Site Company,...
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Appellees, the surviving widow and children of W. B. Cochran, deceased, brought this suit against P. H. Dillard, Will Dillard, and his wife, Ella Dillard, to recover an undivided one-half interest in 72 acres of land situated in Hill county. The defendants answered by plea of not guilty, the three, five, and ten years' statutes of limitation, and by special answer, alleging that the deed executed ...
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This suit was instituted by J. S. Rice, as trustee of the estate of T. W. House, bankrupt, against the Germania Life Insurance Company to recover upon a $5,000 life policy issued to Louis Harde. The insurance company answered, admitting liability to the extent of $5,000 upon the policy, and tendered the amount into court, and prayed that Emma Harde, who had qualified as independent executrix under...
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This suit was instituted by the appellees J. H. Davis and R. C. Blackwell, as partners, against the Magnolia Warehouse Storage Company, a corporation, for damages for breach of contract. The facts thereof which are material to this opinion are detailed below:
Plaintiffs alleged that the defendant company being desirous of building a warehouse, advertised for bidders for the excavation work for th...
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Appellee, while driving in a buggy on the Telephone Public Road in Harris county, on the night of August 28, 1910, had a collision with an automobile going in the opposite direction, owned by the appellants and driven by one Pres Lea. As a result of the collision, appellee was thrown from his buggy, sustaining serious injuries, and, upon trial, verdict and judgment in his favor was rendered in the...
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This is a suit by Rebecca Nelson, joined by her husband, in the county court of Bexar county, to recover $300, alleged to be due her by the Royal Casualty Company by reason of a contract of insurance issued by the defendant to David Nelson, son of plaintiffs. The plaintiffs set out the insurance policy verbatim and alleged that David Nelson had complied with all its terms. They alleged that he was...
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This suit was instituted by appellees, Frank Hough and M. J. Ramaeker, against appellants, Henry J. Fink and C. R. McAfee, for $5,000, based upon the following contract: "December 19/08. This contract, entered into this day by and between Henry J. Fink of Belleville, Illinois, party of the first part, and M. J. Ramaeker and Frank Hough of Lindsay, Nebraska, parties of the second part, witnesseth: ...
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The basis of this suit is a note for the sum of $1,230.60, executed by the *Page 681
appellee the Southwestern Engineering Construction Company, payable to the order of the First State Bank of Hereford, six months after date, of which note plaintiff in error became the owner prior to the institution of the suit. Upon the filing of the original petition, plaintiff in error sued out a writ of atta...
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This was an action in trespass to try title by appellant to recover 248 acres of land in Brazoria county, tried before the court, resulting in judgment for defendants.
Laura M. Justice was the common source of title; plaintiffs having deed from her heirs. The estate of Laura M. Justice was administered in the county court of Galveston county; and defendants claim title under a deed from the execut...
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This was a suit brought by appellees against appellant to remove cloud and quiet title to 160 acres of land out of the Aguillera 11-league grant in Freestone county, basing their right to do so upon the 10-year statute of limitation, describing the land sought to be recovered by metes and bounds, and asking that the land so described be set aside to them, but, in the event that this could not be d...
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G. W. Crowder mortgaged to R. F. Butts a certain mule; the mortgage authorizing Butts to take possession and make sale in event default was made in payment of the debt for which the lien was given. The instrument was duly filed for registration, and subsequent thereto Crowder sold and delivered the animal to appellee. Butts filed suit in the justice court against appellee; the entry on the docket ...
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In 1909, E. L. Jackson was indebted to the Rotan Grocery Company in the sum of $3,450, and, being unable to pay the same, he entered into a contract with W. N. Orand, who represented the Rotan Grocery Company, as its adjuster and collector, as a result of which contract Jackson and his wife executed a warranty deed conveying to Orand a 150-acre tract of land in Hill county, and Orand executed to ...
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Appellees, Whittington Sweeney, sued the Kansas City, Mexico Orient Railway Company of Texas, the Kansas City, Mexico
Orient Railway Company, and the Missouri Pacific Railway Company for $5,952, damages to a shipment of 47 cars of cattle from Midland, Tex., to Pontiac, Kan., over the defendants' lines of railroad. The trial before a jury resulted in a judgment in appellees' favor in the sum of $...
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The Washington County State Bank filed this suit to recover of the receiver of the F. E. Pye Realty Company and F. E. Pye and L. H. Perry on a promissory note for $8,000, and for foreclosure of deed of trust executed to secure the same. The note in question is signed F. E. Pye Realty Company and F. E. Pye, and payable to the order of L. H. Perry, and by him indorsed in blank. The plaintiff alleged...
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Appellee, a corporation formed under the laws of Texas for the purpose of constructing, maintaining, and operating dams, reservoirs, lakes, wells, canals, flumes, laterals, and other necessary appurtenances, to be used for irrigation, navigation, milling, mining, and stock-raising purposes, instituted proceedings before the county judge of La Salle county to condemn two certain tracts of land belo...
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All except one of the assignments present questions as to the action of the court below in giving and refusing instructions to the jury. The portions of the main charge attacked as erroneous are the fourth, sixth, seventh, eighth, ninth, and tenth paragraphs thereof, which are as follows:
"(4) As to foreign cars coming on defendant's line of road, it owed to its employés engaged in the operation o...
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This suit was filed in the county court by R. G. Pleasants, keeper of a livery stable, to recover from A. D. O'Bannon, Morris Stern, and Sig Stern the value of a horse of plaintiff, claimed by him to have been killed by reason of the negligence of the defendants, and to recover also $20 attorney's fee. Before a hearing upon the merits, the plaintiff dismissed his cause against O'Bannon, and also t...
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This is an appeal from a judgment rendered upon a motion filed by Herman Kruegel in the Fourteenth district court of Dallas county, Tex., praying that H. H. Williams, district clerk of said county, be held in contempt for failure to issue an execution on a money judgment rendered by said court in favor of said Kruegel, wherein said Kruegel was plaintiff and Murphy Bolanz were defendants.
The moti...
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Appellees sued appellants in the district court upon a nonnegotiable promissory note for $1,000, signed by appellants, payable to appellees, and recovered verdict and judgment for the amount of the note and interest.
The following are the facts necessary to a determination of the appeal: Appellants were in business in Hillsboro, Tex., and appellees desired to acquire their business. An agreement w...
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H. H. Brockman and Mary Brockman, husband and wife, sued J. S. Peoples and Joel Peoples, Jr., alleging that in January, 1910, said Mary Brockman sold said J. S. Peoples a certain stock of cattle to be delivered at the Barksdale ranch in Edwards county, for which he agreed to pay her the market value of said cattle; that payment was to be made by said J. S. Peoples paying off a note for $1,000 owin...
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This was a suit by H. L. Tolar, William R. Stockwell, and Charles A. Drake against the South Texas Development Company, Bert L. Turner, and J. O. Ross, for specific performance of contract to convey, and partition of, an undivided 213 1/3 acres of land out of section 1 in A. C. H. B. survey, situate in Brazoria county, Tex., and, in the alternative, for damages for breach of contract. On May 10, 1...
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Action by Mary Baty, wife, ^ * ^ and W. P. M. Baty and Sophronia Baty, fa- * ther and mother, against McGinty for damages arising out of the alleged negligent killing of Herbert Baty. Upon trial a peremptory instruction in favor of the defendant was given, the court assigning no reasons for giving the same, and under the first assignment the proposition is advanced that the giving of such charge,...
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The appellant has made no statement of the nature and result of this suit, and we adopt the following statement made by the appellee: "C. V. Surls sued Mrs. Mattie Bass, a widow, and the American Insurance Company of Newark, New Jersey, in the district court of Kaufman county, Tex., and alleged that the said Mrs. Mattie Bass had sold and transferred unto plaintiff an undivided one-half interest in...
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The appellant filed an application in the county court of Hill county, Tex., for the probation of the will of her deceased husband, M. C. Smith, The appellees, children of M. C. Smith by a former marriage, contested said application on the grounds: (1) Fraud; (2) undue influence exercised by appellant upon deceased; and (3) want of testamentary capacity of deceased to make a will. The county court...
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This is an appeal by Guadalupe county from a decree of the district court perpetuating an injunction restraining appellant from opening an alley through the property of appellees in the unincorporated town of Marion. The record contains a statement of facts, as well as the conclusions of fact and law of the district court; the latter, however, having been filed more than 10 days after the adjournm...
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This was an action by appellant, Ajax-Grieb Rubber Company, brought in the county court of Potter county, against Byars Thompson, appellees, on an account for the sum of $367.61, the items of which are for certain automobile supplies, including ten nonskid tire casings. It is alleged in the petition that the price for the several items was agreed upon between the parties. The appellees alleged, i...
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This is an appeal from an order of the district court of Brewster county, refusing a writ of injunction.
Appellants sought to enjoin a sale, under *Page 924
deed of trust, of certain town lots situated in Alpine, Brewster county; the deed of trust having been executed by J. T. Weaver, Sr., to J. C. Brooke, as trustee, to secure payment of a $1,280 note in favor of Mrs. John Emison. Mrs. John Emis...
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J. G. Groves, claiming that the Reinhardt Grain Company, a firm doing business at McKinney, Collin county, Tex., ■composed of Marvin Reinhardt, who resides in Collin county, Tex., and George Reinhardt, -who resides in Cherokee county, Tex., was indebted to him in the sum of $180 for services rendered in selling grain for it, transferred his account against said parties, with•out guaranty, to W. T...
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Appellant, plaintiff in the court below, filed this action in trespass to try title and for damages, alleging that he was the owner in fee simple of certain lots in the town of Umbarger, Randall county. He prayed for title and possession of the lots and improvements, and for damages in the sum of $40 per month during the time appellee had occupied the premises. Appellee answered by general excepti...
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This suit was brought by appellee, Henry Tomlin, against appellant, Martin Wilkins, for damages for alleged libel. Judgment was in favor of ap-pellee for $600. There is no brief filed by either party, and the ease is dismissed for want of prosecution. ...
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R.S. Stanger died intestate in the year 1882, leaving as his surviving heirs a brother, R. H. Stanger, and three sisters, Kate, Mary, wife of Edward Delaney, and appellant F. E. Stanger, afterwards Nuckols. Kate died, intestate and unmarried, in 1885. R. H. Stanger was appointed administrator of the estate of R.S. Stanger by the county court of Brazoria county, and in accordance with orders and de...
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Appellees brought this suit against appellant, seeking to recover upon a fire insurance policy for the sum of $350. The property insured was household furniture, wearing apparel, etc. It was stipulated in the policy that, in the event of loss, the insurance company would be liable for not more than three-fourths of the value of the property so destroyed. The defendant's answer presented several de...
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The following statement of the nature and result of this suit, which is acquiesced in by the appellee, is taken from appellant's brief: "This is a suit for damages brought by appellee against appellant for personal injuries alleged to have been received by appellee while in appellant's service as a train porter. Appellee alleged that he was porter of one of appellant's trains, operated between Den...
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Long before the accident which gave rise to this suit occurred, both the city of Austin and appellant maintained their respective plants in said city; the former for furnishing light, and the latter the means of telephonic communication to its inhabitants, each being operated by means of electricity conducted through overhead cables and wires, strung on their respective poles throughout said city ...
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This suit was brought by appellant against the appellee to recover damages for the alleged breach by appellee of a contract to furnish sufficient water to irrigate a crop of rice planted by appellant in the season of 1908 on a farm of 100 acres in Orange county contiguous to an irrigating canal owned and operated by appellee during said year. After alleging the execution of the contract sued on an...
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This is an action on a written contract by O. H. Barnes and C. B. Moling, appellants, against the Central Bank Trust Company, incorporated, F. E. Pye, E. R. Johnson, Ned Gill, and Richard Rodgers to recover from the Central Bank Trust Company and from Pye and Johnson one-half of the net profits accruing on the purchase and sale of certain real estate. The case was tried before a jury, and upon t...
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Page 624
Findings of Fact.
L. R. Hays of Chicotah, Okla., made a contract with L. L. Shields, of Santa Anna, Tex., to deliver to him at the latter place a car load of good, heavy, Oklahoma river bottom corn, for which Shields was to pay upon delivery the sum of 63 cents per bushel. Hays shipped to Shields a car load of corn, and drew upon him through the appellant bank for $287...
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On May 24, 1900, Jake Norsworthy, Cyrus Boykin, and his wife, Malinda, and Alfred McFarlane and his wife, Paralee, sold to August Lindstrom all the merchantable pine timber then standing and growing upon 225 acres of land; and on the same date Anthony McFarlane sold to said Lindstrom all of such pine timber then standing or growing upon 50 acres of land. In the year 1911 appellee B. Boykin began c...
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On the 9th day of April, 1908, in cause No. 1,413, styled J. N. Collier v. William Cameron Co. et al., a judgment was rendered disposing of the issues involved in that suit; the same being suit in trespass to try title and for damages. Later G. F. Floyd and Fannie Floyd, who appeared as plaintiffs in the original suit, filed their bill of review to set aside said judgment, and that suit was style...
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W. T. Norman brought this suit against the Texas New Orleans Railroad Company to recover damages caused by the alleged negligence of the defendant in permitting a culvert, which drained surface water from the north to the south side of its railroad track, to become obstructed, whereby plaintiff's premises were overflowed and the alleged damages resulted. Among the items of damages alleged was the...
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W. Y. Garrison claimed that Wesley Peacock owed him $116.66 on open account. Garrison made out the account and attached it to a draft, which he drew on Peacock for that amount, in favor of the First State Bank of Garrison, and also transferred to it the account for $116.66. The bank paid Garrison the full amount, and sent the draft to San Antonio, where Peacock lived, for collection. Payment was r...
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This suit was brought by plaintiff in error against the defendant, G. E. Pratt, to recover the sum of $240.95, alleged to be the balance due upon am account for goods sold and delivered by plaintiff to defendant. In addition to a general demurrer, special exceptions, and general denial, the defendant’s answer contains the following plea: “And for further plea defendant comes now and- says that th...
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J. S. Jefferson brought suit in the district court against the Montrose Lumber Company to recover $840, alleged to be due him for services in looking after the sawmill and premises of defendant from March 4, 1908, to September 4, 1910. Defendant pleaded general denial and the statute of limitation of two years. The suit was filed October 26, 1910. A trial without a jury resulted in a judgment for ...
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Betty Pullen, joined by her husband, brought suit against Ida Japhet in her individual capacity and as independent executrix of the estate of Isadore Japhet, deceased, and as guardian of the estate of the testator's minor children, also against Dan A. Japhet and Japhet Co., a corporation, for the recovery of an interest in the property of the estate of the decedent, which she alleged had been app...
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Appellant, C. C. Lowrey, plaintiff in the court below, brought this suit against the appellees, P. A. Fitzhugh and the Beaumont Cotton Oil Refining Company, defendants, to recover damages for personal injuries sustained by him while in the employment of defendants. The case was tried before a jury, and at the conclusion of the trial an instructed verdict was returned for the defendants, upon which...
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On June 12, 1900, W. C. Parsons sold to the Reliance Lumber Company, its successors and assigns, all the merchantable pine timber on a tract of land owned by him on the Marvin Bill one-third league survey in Jasper county. The title to the timber by mesne conveyances passed into appellant, and on January 26, 1909, the title to the land passed into appellees. During 1910, the appellees, or some of ...
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On the 9th day of August, 1911, the Angleton State Bank, as plaintiff, filed suit in district court against Elmer P. Stockwell, F. M. Harvin, and the appellants Irene E. Moller, G. Emil Moller, Arthur Moller, Cora I. Roberts, H. L. Roberts, Maggie Tacquard, A. H. Tacquard, and Lillian E. Moller, alleging that Elmer P. Stockwell executed a note for 1,360 to the order of Guy Huffman as part of the p...
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This is a suit by L. S. Green against T. P. Loftus for the recovery of $332.50, the balance due upon a verbal contract between the parties, under which plaintiff architect was to prepare plans for the erection of a two-story brick building in the city of Houston, procure bids therefor, and to superintend the construction thereof. The appellant's first and second assignments of error raise the same...
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Appellants’ amended brief fails to-comply with the rules, and will not be considered over the objections of appellees. The record in the case discloses no fundamental error, and the judgment is affirmed. ...
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The following statement of the nature and result of the suit is taken from the brief of appellant: “This suit was brought against Mackay Telegraph-Cable Company by S. J. Bain and T. D. Warley, partners composing the firm of Bain & War-ley, to recover damages charged to have been suffered by them as the result of the alleged erroneous transmission by defendant of a telegraphic message.
“The...
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In its first and eighth assignments appellant complains of the verdict as excessive, and in its second, third, fourth, fifth, sixth, and seventh assignments complains of portions of the closing argument to the jury, made by one of appellee's counsel, as unwarranted by the testimony and prejudicial to its rights.
When considered with reference to the injury suffered by said appellee, we do not thin...
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Appellee, appellant's wife, sued him for a divorce. She also sought a partition of property which, she alleged, belonged to the community estate between them, and an allowance for her support, and the payment of the expenses of her suit, and an injunction restraining appellant from disposing of any of said property. In his answer appellant denied that the property in question belonged to said comm...
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On the 12th of July, 1912, as appears from the pleadings, Mrs. W. A. Morrison, while in Galveston, contracted to purchase from Goggan & Bros., a corporation, an Emerson piano, stool, and scarf for the sum of $332.50, executing and delivering to it in payment therefor her personal check on the Citizens’ National Bank of Cameron, Tex., for said sum, payable to the order of plaintiff in error, and at...
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The Texas Central Railroad Company, defendant in the trial court, has appealed from a judgment rendered in favor of A. G. Hawkins, plaintiff, for the sum of $8,000, as damages for a personal injury sustained by the plaintiff while he was performing the duties of conductor of one of defendant's passenger trains.
Briefly stated, plaintiffs injury occurred in the following manner: At the station Clai...
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Louisa C. Heimer instituted this suit against Roy Neblett, C. D. Neff, Mrs. ...
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Appellee recovered a judgment for $6,750 as damages for the death of her adult son, Edward W. Keith, on the night of May 14, 1912, at Harbin in Erath county, Tex. As alleged, and as there was evidence tending to show, Edward Keith was unmarried and the sole support of his widowed mother and several of her grandchildren. On the night in question he took passage at Ft. Worth, Tex., for his home in S...
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On the 5th day of February, 1913, S. B. Maddox instituted this suit against J. P. Clark in trespass to try title, and for possession of lots 7, 8, and 9, in block 21, and lots 7, 8, 9, 10, and 11, in block 19, of an addition to the town of Knox City, in Knox county. The appellee, Clark, answered, alleging, among other things, that prior to the 19th day of February, 1912, he and his wife were the o...
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J. E. Head sued the Henry Oil Company to recover damages for breach of a contract to dig a certain oil well, and from a judgment in his favor, the defendant company has appealed.
Head, the appellee, owned a great many thousand acres of oil leases in Archer county, leased from Henry J. Scott and others, and conveyed a portion of his holdings to the Henry Oil Company in consideration that that compa...
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This appeal is from a judgment in appellee's favor for $850 as damages for a breach of a transportation contract. The contract in question was dated November 22, 1909, and by its terms Martin was denominated party of the first part and the railway company party of the second part. The material portions of said contract are as follows:
"I. In consideration of the agreements herein stipulated the pa...
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Appellee recovered a judgment in the county court of Tarrant county for civil cases for $155. Her original petition upon which the trial proceeded, omitting the prayer and formal parts, is as follows: "Comes now Mrs. M. L. Kirksey, who resides in said county and state, hereinafter called plaintiff, complaining of L. L. Higby, who resides in Tarrant county, Tex., hereinafter called defendant. For c...
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The Chicago, Rock Island & Gulf Railway Company was sued by J. F. Swaggerty for damages alleged to have resulted from injuries received by cattle owned by the plaintiff during a shipment from North Ft. Worth to Bowie, a distance of approximately 67 miles, and, from a judgment in favor of the plaintiff, the defendant has appealed.
The shipment left North Ft. Worth about 7 o’clock in the mor...
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On January 3, 1912, appellee William Stogner, who resided at St. Jo in Montague county, a point on appellant's line of railway, had a minor son, George Stogner, at or near the town of Henrietta, in Clay county, also on the line of appellant's railway, who was without means and whom the father desired to come home. For the purpose of accomplishing the desired end, and in answer to a request of the ...
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The A G. McAdams Lumber Company, a corporation, and the *Page 321
appellee in this court, brought suit in the district court of Cottle county, against Nugent Bowns, building contractors, against the Common School District No. 1 of Cottle county, Tex., and the Board of Trustees, in their fiduciary capacity, and also against said trustees individually, and against H. N. Garrett, T. A. Fannin, W. H...
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This suit was brought by Minnie Tabor, for herself and as next friend for her minor children, against the Modem Woodmen of America, a beneficial insurance company, to recover on a policy of insurance for $2,000 written on the life of A. B. Tabor, her deceased husband. The company answered, denying generally and pleading specially that the insured had failed to pay two assessments of $1.60 each, d...
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Appellee instituted this suit in the district court of Johnson county, declaring upon a written contract between himself and J. T. Baker for the exchange of numerous properties in the contract mentioned. The contract was dated on the 12th day of June, 1912, and the plaintiff alleged, among other, things, that, of the property which the defendant Baker had contracted to transfer to him, $3,100 in v...
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Jesse Mercer Chandler having been adjudged a bankrupt upon his voluntary petition in the United States *Page 329
District Court, Hoyt Lacy was appointed trustee, and thereafter the trustee instituted this suit against Emmett Chandler, son of the bankrupt, to subject to the payment of the bankrupt's debts 320 acres of land, which the bankrupt had conveyed to the defendant two days prior to the fil...
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This is an ordinary cattle shipment case, in which J. F. Drahn and Edgar Kerr, plaintiffs, recovered against the Gulf, Colorado & Santa Fé Railway Company for the negligent handling of two ears of cattle, originating at Beaumont and High Island, respectively, and destined to North Ft. Worth. The defendant company appeals.
The charge of the court is first criti-cised because of the definiti...
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Appellee recovered a judgment for the sum of $400 as damages to an automobile owned by him, and which it was alleged had been damaged by reason of appellant's negligence. It appears that the collision in question occurred a short distance south of Saginaw, a small station a few miles north of the city of Ft.Worth. At the point in question the line of appellant's railway extends approximately north...
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Appellee sued for the sum of $110 in the justice’s court, alleging the breach of a warranty of the soundness of a mule which appellee had purchased from appellant. The verdict and judgment in the justice’s court was in appellee’s favor, whereupon appellant appealed to the county court. In the county court appellant again suffered an adverse verdict and judgment, the judgment being for the sum of ...
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This is an appeal from a judgment in favor of appellee for the sum of $51.45 against Burt T. Jarvis as principal and W. L. Grogan and C. M. Tandy, sureties upon what is termed a "convict bond," executed by virtue of Revised Statutes 1911, art. 6251. The district court, which it has been held has jurisdiction to try such suits (see Hill Co. v. Atchison,19 Tex. Civ. App. 664, 49 S.W. 141) filed the ...
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This is an appeal by the Missouri, Kansas
&
Texas Railway Company of Texas from a judgment in favor of the state of Texas for a penalty for failure to keep the railroad company’s water-closet at the town of Belcher lighted in the nighttime, as required by article 6593, Revised Statutes, 1911.
The first assignment is that the court erred in the fourth paragraph of his charge for ...
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J. M. McKenzie instituted this suit against C. W. Connery, N.C. Mann, J. R. Morris, and L. P. Powell in the nature of a bill of review to set aside a judgment rendered in a former suit in favor of Connery against McKenzie, Mann, Morris, and Powell for the sum of $1,682.40, and in which suit judgment was also rendered in favor of Mann, Morris, and Powell over against McKenzie for $1,500 of said amo...
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L. Grief Bro., a copartnership, filed this suit in the county court of Jones county to recover from the Texas Central Railroad Company the value of a box of goods shipped by freight on September 30, 1910, over defendant's line of railway from Hamlin, Tex., to plaintiffs at Baltimore, Md. In their original petition plaintiffs alleged that the box of goods was of the value of $186.50, which it was ...
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In November, 1911, the appellee, W. A. Hall, filed this suit against the National Fire Insurance Company, seeking to recover the sum of $400 alleged to be due upon an insurance policy covering a house which had formerly been occupied by Hall as his residence. The insurance company answered by a general demurrer, general denial, and in a special plea admitted the execution and delivery of the polic...
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C. U. Connellee has appealed from a judgment against him in favor of Thos. L. Blanton by which plaintiff, Blanton, was awarded damages for libel alleged in plaintiff's petition. The case was tried by the court without the aid of a jury, and the trial judge filed findings of fact, which *Page 405
appear in the record, and none of which is assailed by appellant. The charge of libel was based upon s...
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C. U. Connellee, defendant in the trial court, perfected his appeal from a judgment adverse to him by giving a supersedeas bond in compliance with the statutes. After said bond was approved and filed, the clerk of the trial court furnished to appellant a transcript of the record to be filed in this court. He then issued an execution against appellant to collect the costs accruing to him for such t...
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C. C. Tucker brought this suit in the district court against J. W. Judson and T. H. Little and the Binyon Transfer Storage Company, a corporation, to recover damages in the sum of $15,000 for certain personal injuries. Plaintiff alleged that Judson Little were engaged in sinking deep wells near the city of Ft. Worth, and that on the date alleged they called upon Binyon Transfer Storage Company,...
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[1] We are not disposed to disturb the judgment below on the ground urged in the first assignment that the court erred in recalling the jury and in receiving the amended verdict in favor of R. S. Ferrell. As in favor of the plaintiff in the suit, it cannot be said that either in the pleading or in the evidence was a case made against R. S. Ferrell, and the court very properly gave the jury in the ...
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This is an action of trespass to try title to a tract of 160 acres of land in Jasper county, and to recover as damages the value of the timber taken from the land by the defendants. The suit was brought by the appellee R. C. Conn originally against John H. Kirby and the Kirby Lumber Company, but by an amended petition filed on April 27, 1911, J. R. Chapman was also made a party defendant. The defe...
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This was a suit for a reward offered for the arrest and conviction of the person or persons who murdered G. J. Levytansky at Laredo, Tex., in December, 1911.
T. M. Mills and Edwin F. Vanderbilt filed the suit against Robert McComb, W. H. Gilmore, Robert Rumsey, James. McGloin, Mike Brennan, Gonzalo Eguillor, Fernando Vasquez, and Sam McKenzie, alleging that, knowing of such offer of reward and act...
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The Ft. Worth Denver City Railway Company instituted this suit against J. A. White and Arthur McNeal to perpetually enjoin them from going upon plaintiff's trains, depot platforms, and right of way in the town of Henrietta to sell lunches and other articles of food to passengers on plaintiffs trains while stopping at that station upon the ground that in so doing defendants obstructed ingress and ...
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Sinclair Taliaferro and wife and J. M. Blanding and wife instituted this suit in trespass to try title against C. M. Rice and others, defendants, to recover land described as leagues Nos. 2 and 8 of the Jose Dolores Martinez grant in Liberty county. On the trial defendants C. M. Rice, J. A. Rice, W. A. White, L. A. White, L. A. Isaacs, T. A. Booth, and C. N. Smith on their application were granted...
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This is an action of trespass to try title brought by appellant, W. D. Cleveland Sons, a private corporation organized and chartered under the laws of this state, against the appellees, George W. Smith, Sampson Smyth, Isaac Riley, and Isabella Riley, to recover the title and possession of a tract of 385 acres of land, a part of the George W. Smyth headright survey in Jasper county.
The defendants...
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Findings of Fact. Appellant herein, at the time the services for which he brings suit were rendered, was the duly appointed and qualified official stenographer of the Fifty-Fourth judicial district at Waco, Tex. There was pending before the county judge of Mc-Lennan county the trial of J. B. Witty upon the charge of lunacy. Appellant was requested by the county attorney of McLennan county to ta...
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This is an action in the county court by S. H. Yarbrough and wife against the Beaumont Great Northern Railroad Company to recover damages for injuries to the value of a certain improved lot, belonging to plaintiffs, in the town of Trinity, occasioned by the building and operation of the railroad along a public street in said town on which said lot is situated. A trial with a jury resulted in a ve...
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The appellee, Alice Johnson, for herself and as survivor of the community estate of herself and her deceased husband, A. S. Johnson, sued the appellant, the Chicago, Rock Island Gulf Railway Company to recover section 30, block HI, in Oldham county, containing 640 acres of land, in the form of an ordinary action of trespass to try title. The appellant disclaimed as to all of said section except 1...
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This is a suit of trespass to try title brought by appellant, M. F. Nellius, by next friend, against appellee Thompson Bros. Lumber Company to recover the title and possession of 231 1/3 acres of land, part of the George Kirkwood survey in Tyler county. Appellee Thompson Bros. Lumber Company answered by general denial and a plea of not guilty and impleaded their vendors, S. F. Carter and J. P. Car...
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This suit was brought by John Vogel and his wife, Christine Vogel, against the Houston Belt Terminal Railway Company, the Trinity Brazos Valley Railway Company, the Gulf, Colorado Santa Fé Railway Company, the Beaumont, Sour Lake Western Railway Company, and the St. Louis, Brownsville Mexico Railway Company, for damages alleged to have been sustained by them through the depreciation of their p...
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Appellants have appealed from a judgment against them in the sum of $1,295.83, awarded as damages to Elton C. Williamson, a minor, for personal injuries received while operating a machine for baling excelsior.
A number of grounds of negligence were alleged in behalf of the minor as a basis for recovery, but the court submitted only the issue of whether appellants had furnished him a reasonably saf...
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On January 24, 1907, Guy H. Porter filed in the district court of Deaf Smith county this suit against the Ft. Worth Denver City Railway Company, the St. Louis San Francisco Railway Company, and appellant, alleging that about the 11th day of January, 1907, he delivered to the defendants at Fletcher, Okla., one car loaded with horses, hogs, farm implements, household goods, etc., to be transported...
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This is the second appeal of this case. The nature of the case is set out in the opinion on the former appeal, in which the present appellee was appellant. 128 S.W. 439. No testimony was introduced for the defendant on the former trial. On the present trial the defendant (appellant here) introduced the testimony of both its agent, who went with the team, and the driver. The liveryman, appellee, fu...
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This is a suit in trespass to try title by R. C. Conn against the R. W. Wier Lumber Company to recover the title and possession of two certain tracts of land, one of 48% acres and the other of 160 acres, both on the T. Pratt survey. Plaintiff also sued for damages for cutting and appropriating timber. Plaintiff specially pleaded his title to the land sued for under the statute of limitation of 10 ...
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This is an action of trespass to try title by J. A. Fain against T. A. Nelms and, as presented in the trial court, involved the title of a tract of 12 acres of land on the Frost league adjoining an International
Great Northern Railroad Company survey of 221 acres. Defendant, who claimed to be the owner of a portion of said survey, alleged that the land in controversy was part of said tract, and a...
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This suit was brought by the appellee, R. E. Morrow, against the appellant, T. J. Freeman, receiver of the International Great Northern Railroad, to recover damages for personal injuries sustained by him while in the service of the receiver in the capacity of boilermaker's apprentice.
Plaintiff alleged that about March 15, 1909, he was injured by a piece of steel striking him in his right eye, an...
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Defendant in error, alleged to be non compos mentis, through his guardian, instituted this suit to recover two surveys of land in Clay county, each containing 320 acres, and to cancel a power of attorney made by J. C. Inman to W. J. Inman and a deed by virtue thereof to one J. H. Warren, and a later deed of confirmation made by J. C. Inman to Warren purporting to convey the lands. Plaintiff in err...
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The following statement of the case is adopted from appellant's brief: "A. F. Linger brought suit against the Chicago, Rock Island Gulf Railway Company in the justice court, precinct No. 2, Oldham county, Tex., on April 8, 1911, to recover damages on account of a cattle shipment from Vega, Tex., to Kansas City, Mo., October 1, 1910, in the sum of $200. This is a companion suit to No. 367, This Co...
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Findings of Fact. On July 19, 1907, one L. O. Kirgin bought of appellant a complete outfit for a printing office, and in payment of the same executed his promissory notes, due from October 19, 1907, to January 19, 1909, respectively, and to secure said notes executed to appellant a mortgage on the property so purchased, particularly describing the same, which mortgage was duly recorded in Freeston...
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Findings of Fact.
On March 23, 1909, appellee Geo. Allen purchased from O. B. Sampson certain real estate, and executed to said Sampson, in part payment, his promissory note for $300, due three years after date; a vendor's lien being reserved to secure the payment of said note. On April 20, 1909, said Sampson indorsed said note without recourse to S. K. P. Jackson, the ...
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We have to-day handed down an opinion in the case of J. T. Thomson et al. v. Findlater Hardware Co., 156 S.W. 301, appealed from the county court of Tom Green county, to which reference is here made for a statement of facts necessary to an understanding of this case.
On November 25, 1912, appellee Thomson, who was appellant in the case above referred to, brought suit in the district court of Tom G...
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W. W. Bright brought this suit against the Houston Texas Central Railroad Company to recover damages for personal injuries sustained by him while in the defendant's employment as a bridge worker. Liability was predicated upon the alleged negligence of defendant in failing to furnish to plaintiff a clawbar that was reasonably safe for use, and in furnishing one that was defective. The defendant an...
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For the second time appellants present to this court for revision an adverse judgment in a suit against them by appellees F. H. Barfield and others, who are the children and children-in-law of Susan Sullivan and J. M. Sullivan, deceased, to recover the alleged undivided community interest of their father, J. M. Sullivan, in a part of the Samuel Andrews survey situated in Jones county. See 138 S.W....
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Francisco Martinez sought to probate the will of Clara de Jesus Pena y Vidaurri, which had already been probated in Mexico, by which will testatrix bequeathed to Maria del Refugio Pena y Zamorana and to Victor Pena, son of said Maria, all of her undivided interest in two tracts of land in Webb county, Tex., known as the Dolores and Coralitos tracts; the same being parts of a larger tract granted b...
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On Motion for Rehearing of Motion to Vacate Judgment and File Findings of Fact and Conclusions of Law.
On May 24, 1911, this court affirmed the judgment of the trial court herein. On June 6, 1911, appellants filed their motion for a rehearing, which motion was overruled by this court on December 6, 1911. On January 4, 1912, appellants filed in the Supreme Court their petition for writ of error, w...
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On February 17, 1909, C. B. Bell filed suit against J. P. Casey for the recovery of one-half of the proceeds of the sale of certain mining properties, the total proceeds of which sale amounted to $38,500, of which amount $2,500 had been previously paid to Casey, $15,500 thereof had been deposited to his account in the State National Bank, and $20,500 was to be placed to his account in said bank on...
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Action for damages arising from personal injuries resulting in verdict and judgment in appellee's favor for $2,500.
The Hughes-Buie Company, a copartnership composed of J. H. Hughes, J. W. Buie, and L. Muehlisen, owned and operated a printing plant in the city of El Paso. Appellee was employed by them as a paper cutter. He was an experienced man, and for several years had operated the machine whic...
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[1] In this case the appel-lees object to our considering appellants’ assignments of error, because they do not point out specifically any error committed by the court, and said assignments are in violation of rule 25, Rules for the Courts of Civil Appeals (142 S. W. xii), in that they do not refer to that portion of the motion for a new trial in which the supposed error is complained of, as requi...
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This suit was brought by appellee, plaintiff below, against the Western Union Telegraph Company and the Southwestern Telegraph Telephone Company, to recover damages for mental anguish suffered on account of their failure to deliver to him a telegram announcing the death of his father and stating the time of burial whereby he was prevented from attending the funeral. Recovery was sought against th...
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This suit was brought by W. N. Carl, appellant, against Mrs. Lennie Moor Wolcott, appellee, to recover a commission for the sale of certain real estate, belonging to appellee, by appellant, real estate agent. He alleged: That he was a real estate agent and broker, doing business as such in El Paso, Tex. That Mrs. L. M. Wolcott, as the owner of southwest corner of block 38, Mills' map of El Paso, l...
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It appears from the record that on the 29th of March, 1909, Jack Atkinson conveyed to C. M. Fisher 80 acres of land out of the Walker league in Dee county, and in part payment thereof said Fisher executed his vendor’s lien note, of even date, payable to, the order of said Atkinson, for the sum of $150, with 10 per cent, interest and 10' per cent, attorney’s fees, which became due on the 1st of Ja...
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Appellant, a private corporation, of Paris, Tex., brought this suit against appellee, upon a note executed by the W. F. Jourdan Furniture Company of Wichita Falls, Tex., for $800, and an itemized verified account, showing a balance due of $1,063.42. The note was dated April 20, 1908, and provided for interest and attorney's fees. The items on the account were dated from February 10, 1908, to Janua...
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This is an action brought in the county court of Harris county for civil cases by the appellee, H. L. Bosworth, upon a certificate of membership issued by the International Travelers' Association, a mutual assessment accident insurance company, organized and chartered under the laws of the state of Texas, to recover indemnity for total disability caused by bodily injury, or injuries, sustained thr...
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W. W. Taylor, appellant brought suit in the district court of Potter county against appellee, Frank A. White, as receiver of the Amarillo Water, Light Power Company. The case was tried before a jury in the court below. The trial judge instructed a verdict for the defendant, appellee, and in obedience thereto the jury returned a verdict for appellee, and judgment was rendered in accordance therewi...
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Appellee, as the surviving wife of Chris F. Hagelstein, sued appellant to recover on an insurance policy of $5,000 on the life of her deceased husband; said insurance being payable to appellee. Appellant sought to avoid liability on the ground that proofs of death of the insured had not been furnished the association at its home office, as provided in the policy, on account of warranties made by t...
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This suit was instituted by appellees against appellants and the Texas Pacific Railway Company to recover $1,350 damages, alleged to have been suffered by appellees on account of the negligent manner of transporting 1,600 head of cattle for appellees from Columbus, N.M., to Van Horn, Tex.
Appellants filed a motion to quash the citation, which being overruled they answered by general demurrer and s...
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Appellant filed this suit to recover the value of certain household furniture and wearing apparel destroyed by fire in appellee's depot at Brownsville, Tex., on August 1, 1911. It is alleged in the petition that plaintiff shipped such furniture and apparel from Phoenix, Ariz., to Brownsville, Tex., by virtue of a bill of lading issued by the initial carrier, and that the said shipment was made ove...
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Appellee sought to recover on two promissory notes for $750 each, executed to his order by C. B. and J. C. McCamy, and to foreclose a vendor's lien on land for the purchase money of which the two notes were given, and upon an allegation that the makers of the notes had sold an interest in the land to the Gulf Coast Immigration Company, a private corporation, it was also made a defendant in the sui...
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This was an action by and upon the part of R. Lupton against the Galveston, Harrisburg San Antonio Railway Company, the International Great Northern Railroad Company, and the Texas Mexican Railway Company, all appellees herein, for damages in the sum of $508.94, alleging failure to deliver and wrongful conversion in joint conspiracy of a certain car of grain, shipped by said R. Lupton, from San ...
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This is a suit for damages on account of injuries to a shipment of hogs; and from a judgment in favor of the plaintiff the defendant has appealed. [1,2] The first assignment complains upon the alleged ground of the admission in evidence of certain testimony, which was objected to. The bill of exception does not show that the testimony referred to in the assignment was admitted in evidence; an...
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Appellee Gresham brought this suit against John Barbian and Geo. Onken in the justice's court to recover the sum of $175.35 on an assigned account for balance claimed to have been due from Barbian to Onken for stone sold and delivered by Onken to Barbian, and which claim was transferred to Gresham by Onken, who guaranteed the payment thereof at Winters, in Runnels county. Defendant Barbian, who li...
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This is a suit on a promissory note, and to foreclose a lien on shares of stock in the South Heights Land Loan Association of Paint Rock, a corporation. Appellant pleaded, among other things, that said note was executed for the stock in said corporation mentioned in appellee's petition, and that no other thing of value was paid for said stock, and that the appellee took said note with full knowle...
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A statement of this case will be found in Freeman v. Huffman,130 S.W. 195. The facts upon the second trial of this case were substantially the same as upon the first trial. We held in our former opinion that appellee was guilty of contributory negligence as matter of law, but that the issue of discovered peril was raised by the evidence. These holdings are conclusive as to the assignments in this ...
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Findings of Fact.
On May 2, 1900, in a suit of plaintiff in error against Wiley Jones and defendant in error, plaintiff in error obtained judgment in the justice's court of precinct No. 1, Dallas county, against said Jones; but no recovery was had against defendant in error. This judgment has been kept alive by the issuance of executions. About July 1, 1907, plaintiff i...
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J. P. Robertson, as plaintiff, recovered a judgment in the district court of Martin county in October, 1907, against I. R. Williams, J. W. Williams, and T. J. Barnes as defendants for the title and possession of two sections of land located in said county. From this judgment the defendant T. J. Barnes perfected an appeal by filing in due time a supersedeas bond with H. N. Garrett and S. P. Carroll...
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Appellant sued appellees in the district court of Edwards county in trespass to try title to recover 640 acres of land in said county known as survey 71, block 3, of the Texas, Western Narrow Gauge Railway Company's lands, describing the same as follows: Beginning at the northwest corner of survey No. 70; thence south 1,900 varas to stake; thence west 1,900 varas to stake; thence north 1,900 vara...
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This was an action in the form and with the averments of trespass to try title, by Morris Rosenthal, William Sporn, Rannie Mooney, joined by her husband, J. E. Mooney, Susan West, joined by her husband, Fred R. West, Brack Hargrave, and the minors, Urilder, Nobles, and Wilson Hargrave, by their guardian, Clementine E. Majorowitz, suing as or in the right of the heirs of Mary Hargrave, deceased, ag...
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This is the second appeal in this case (Railway v. Brown, 135 S.W. 1076), and reference is here made to our former opinion for a full statement of the nature of the case. The former judgment was reversed on account of an error in the court's charge, and in the refusal of a requested instruction. At the last trial the case was properly tried, and a verdict and judgment were rendered for the plainti...
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This action is one of mandamus, instituted in the county court of Wilbarger county, Tex., by appellee, to compel Hart, the justice of the peace, and appellant herein, to “prepare a complete record and transcript of all the proceedings had” in the justice court in the case of Stultz v. Wilson, “in order that a trial de novo may be had in said county court of Wilbarger county”; the record and eviden...
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J. F. Wagner instituted this action in trespass to try title against M. P. Geiselman to recover lot No. 2 in block No. 52 in Foster's addition to the city of Houston. The lot is a part of the Harris third of a league, and part of a tract of 127 acres conveyed by Harris to Richey; the title afterwards coming to J. E. Foster. Defendant pleaded not guilty and the statute of limitation of three, five,...
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Mrs. A E. Mapes owned a home in the city of Wichita Falls fronting on Michigan avenue, a public street running approximately north and south. She, together with her family, had occupied the home which was her separate property, for several years, when in 1910 the Ft. Worth
Denver City Railway Company constructed a side track along the center of Michigan avenue. It also constructed another side tr...
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There was no motion for a new trial in this case, and, consequently, the assignments of error, which are objected to by appellee, cannot be considered by this court; but appellant insists that there is fundamental error in the judgment in that a general demurrer was sustained and that appellant's petition showed a good cause of action. "A judgment sustaining a general demurrer, which is a declarat...
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This is the second appeal of this case to this court. The former opinion appears in 135 S.W. 173. A full statement of the case is there made, which, so far as is necessary to the determination of this appeal, sufficiently states the case as it is now presented.
Appellant's fifth, sixth, seventh, eighth, ninth, and tenth assignments of error assail the judgment of the court in overruling the motion...
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The motion to affirm and the certificate in this matter show that the appeal bond in the above cause was filed in the lower court on the 16th of March, 1912; hence the appeal was returnable at the preceding term of this court, and as this motion to affirm, with the certificate of the clerk, was filed at this term of this court, this matter is controlled by the decision in the case of Laughlin v. D...
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This is a suit in which appellee recovered $400 damages against appellant on account of injuries received by him from the caving of a ditch in which he was at work. The ditch was about 4 feet wide and 12 feet deep. Appellee at the time of the injury was tamping dirt around a pipe in said ditch.
The general and special charges given by the court properly submitted to the jury the issue of negligenc...
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W. C. Wharton was the agent of the Fidelity Mutual Life Insurance Company of Philadelphia, and as such executed a bond in the sum of $700, conditioned, among other things, for the faithful performance of his duties. J. H. Wharton signed said bond as the only surety thereon. W. C. Wharton failed to pay over moneys claimed to be due appellee by him, and appellee sued to recover the amount of said bo...
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C. B. Cummins, the appellee, sued the appellant, Texas Midland Railroad, for damages in the sum of $24,500, and alleged that on February 9, 1911, about 5 o'clock a. m., he bought a ticket from defendant's agent at Paris, Tex., to Jacksonville, Tex., by way of Kaufman, Tex; that he boarded defendant's train and became a passenger, but before the train left he went out of said train for the purpose ...
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This suit was brought by the appellee against appellant to recover damages for personal injuries alleged to have been inflicted upon him through the-negligence of appellant’s agents and employés on or about the 6th day of June, 1911. The petition alleges, in substance, that at and before the time of the injuries complained of the defendant railway company operated and maintained railway yards with...
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On July 29, 1910, appellees owned in fee simple 185 acres of land in Smith county, a particular description of which is unimportant, and on that day conveyed same by general warranty deed to appellant. On December 23, 1910, following, appellees sued the appellant in the district court of Ellis county, alleging that said land was conveyed to appellant in consideration of appellant's note for $150, ...
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This is a suit for damages instituted in the county court of Potter county by appellee against appellant. Appellee's allegations are to the effect that during the month of November he was engaged in construction work on the line of appellant company at a point south of Lubbock, and that in the prosecution of his work it was necessary for him to use, and he did use, a large number of horses and mul...
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The appellee Monte Bowron sued appellant, the Snyder Ice, Light
Power Company, in the district court of Scurry county for damages which it is alleged he sustained while in the employment of the appellee Scurry County Telephone Company, as lineman, and while in the discharge of his duties as lineman in repairing one of the telephone company's wires at the southeast corner of the public square, in ...
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J. J. F. McWilliams, real estate agent, brought this suit for commissions for furnishing purchaser for certain tracts of land belonging to the defendant, Ft. Stockton Irrigated Lands Company.
On February 5, 1913, the statement of facts filed was stricken from the files, because not in compliance with rules 72 to 78 prescribed by the Supreme Court, for the reasons given in Albers v. Roberts, 150 S....
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This suit involves a contest between two rival claimants for the right to prospect for and develop oil, gas, coal, or other minerals underlying a tract of 245 acres of land out of the McNeal survey in Navarro county, basing their respective claims thereto upon certain contracts between themselves and the owners thereof. It was alleged by appellant Witherspoon that on the 30th of October, 1910, Dr....
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On September 21, 1897, C George J. Gould entered into this contract with Charles B. Eddy: "First. Said Gould agrees to procure to be sold and transferred to said Eddy, his representatives or assigns, as soon as the legal formalities pertaining thereto will conveniently permit, so much of the roadbed and grading, right of way track and all other appurtenances, of what is known as the `Old White Oak...
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N. Levin sued Wm. Eppstein, Edward Roos, A. H. Danforth, and Bartley Cushing, as partners, in the district court of Bexar county, to recover the sum of $575, balance due him for material supplied and services rendered in making and painting certain scenery to be used upon the stage of a theater in San Antonio, of which the defendants were alleged to be lessees. Defendant Eppstein, by answer, denie...
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Appellee sued appellant to recover damages for a depreciation in the value of his house and lot, situated in the town of Cooper, Delta county, Tex., and occupied by himself and family as a home, alleged to have resulted from the construction and use by appellant of a livery stable near appellee's said home. The petition alleges, among other things, that the use of the building erected by the defen...
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Appellant makes the following statement of the nature and result of the suit, which we adopt: This suit was brought by the Carson Lumber Company and other plaintiffs and interveners against W. E. Thomas, Mrs. Z. Blaffer, and the United States Fidelity Guaranty Company. The record in the case in substance shows that Mrs. Z. Blaffer desired to erect a house for a fixed sum of money. The contract wa...
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By natural law, the custody of the child is given to the parent, for the reason that it is presumed that out of this relationship flow such love and affection for the child as would promote its best interests; but this is not an inalienable or paramount right. In the event of a failure on the part of the parent from any cause to perform this sacred trust, the state has the right to interfere and t...
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Appellee was employed as a woodworker by appellant, a railway corporation, in its shops in the city of Houston, and on June 2, 1911, sustained personal injuries while in the performance of his duties. This action was for damages resulting from such injuries, and upon trial verdict and judgment was rendered in favor of appellee, from which this appeal is prosecuted.
Contributory negligence was plea...
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Appellant sought to probate the will of Mrs. Manuela Morales Guerguin in the county court, and a contest was filed by Mrs. Annie Guerguin, as next friend of her husband, Leopold Guerguin, a person of unsound mind, on the ground of the mental condition of testatrix at the time the will was executed, October 6, 1910, by reason of the fact that the will was not executed as required by law, of undue i...
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Plaintiff in error instituted this suit in the district court of Harris county, against Henry Albrecht, clerk of said court, .and the Houston Belt & Terminal Railway Company, his petition containing the following allegations: That Albrecht was the duly elected, qualified, and acting clerk of said court; that on April 19, 1911, plaintiff, upon a trial before a jury, obtained a' verdict in the su...
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Appellant instituted this suit in the district court of Brewster county against W. F. McGaughy, a resident of Brewster county, and Clay Robinson Co., a corporation, domiciled in Tarrant county, upon a draft drawn by McGaughy in the sum of $2,539 to the order of appellant upon Clay Robinson Co., drawee, dated April 26, 1912, Clay Robinson
Co. filed a plea to the jurisdiction of the court over its...
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This is an action of trespass to try title to sections 3, 10, 18, 19, 20, and 21, block 63, free school lands in Culberson county, instituted by appellee against Flora E. Rainer and her husband, J. E. Rainer, appellants, who filed a general demurrer, general denial, plea of not guilty, and a special plea alleging that appellee was setting up a claim to the land by reason of certain applications to...
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This was an action by Wesley A. Long and wife, Katie Long, against Max Posener for damages arising from personal injuries inflicted upon Katie Long by reason of a collision with an automobile driven by the defendant, Posener. At the time of the accident Mrs. Long was standing at the intersection of Myrtle avenue and Willow street, in the city of El Paso, for the purpose of taking passage on an eas...
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This is a suit brought by R. N. Henson against Paul Konz et al. for the sum of $580 and interest alleged to have been collected as attorney's fees upon certain notes; the question being whether or not the notes had been placed in the hands of an attorney for collection at the time they were paid. The defendants pleaded general denial and specially that on or about the 21st day of October, 1910, R....
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This is a suit by W. J. Murray against the Texas New Orleans Railroad Company to recover damages for personal injuries alleged to have been sustained while employed by defendant as section laborer in its yards in the city of Houston. A former appeal of this cause is reported in 132 S.W. 496. The petition upon each trial being the same, we refer to the reported cause, supra, for a fair statement o...
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This is the suit of Will Cooper against Almon Cotton and G. E. Cotton to recover actual damages in the sum of $700, alleged to have been suffered by appellee by reason of the wrongful, fraudulent, and malicious conduct of the Cottons and their agents, and for $5,000 punitive damages. Appellee alleged: That the defendants, falsely claimed that he was indebted to them in the sum of $35, filed with t...
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This suit was instituted by defendants in error in the justice court of Wise county, against plaintiffs in error, on a note for the sum of $115, alleged to have been executed by defendants in error on February, 2, 1907, and due October 1, 1907, bearing interest at 10 per cent. and providing for 10 per cent. attorney's fees. The defendants pleaded non est factum, and the plaintiffs alleged that sai...
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This is a suit for damages caused by fire which escaped from an engine while operating a train. There was a verdict and judgment for the plaintiffs, and the defendant has appealed. The plaintiffs sought to recover the value of the grass that was burned, and for injury to the turf, which thereby diminished the value of the land for pasturing stock; that being the purpose for which the plaintiffs us...
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This case comes up from the county court of Waller county, and is a grass-burning case, similar in many of its features to H. T. C. R. R. Co. v. Ellis, 160 S.W. 606, decided by this court at its last term. Some of the questions raised here were decided against appellant in the former case, and we adhere to the rulings there made.
The charge prepared by the court, as supplemented by instructions g...
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Holt and L. M. Williamson, attorneys at law, sued appellant to recover $500, alleged to be the reasonable value of legal services rendered by them in representing him in condemnation suits filed against him in the city of Galveston. The cause was tried by a jury, and a verdict was returned in favor of appellees in the sum of $450. The first assignment of error assails the action of the court in...
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The appellee, by an additional brief and argument in this case, is vigorously insisting that we committed serious error in the former disposition of this case.
First. As to our construction of the judgment in favor of the First National Bank being based upon the open account instead of upon the note, and that certain language in another portion of the judgment is a significant indication that the ...
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Appellant sued appellee upon two items of alleged indebtedness, one amounting to $4,486.31 and interest, and the other amounting to $200 and interest. There was a jury trial, and, after the jury had reported that they were unable to agree, the trial court instructed a verdict for the defendant as to the larger item, and a verdict and judgment was rendered for the plaintiff as to the other item, an...
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We adopt appellant's statement of the nature of the pleadings filed: "This is a suit in trespass to try title that was brought by appellant against appellees in the district court of Hidalgo county, Tex., and afterwards transferred by agreement of parties to the district court of Bexar county for the Forty-Fifth judicial district, in which appellant seeks to recover of appellees the title and poss...
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Appellant brought this suit against appellee to recover 80 acres of land, a part of the David Statler survey, and 86 acres of land, a part of the William Hogg survey, both tracts situated in Henderson county, Tex. The action was in the ordinary form of trespass to try title. The defendant answered by a general denial and plea of not guilty. The case was tried before a jury on February 12, 1913, a...
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Appellant sued appellee, a corporation, alleging that he was in the employ of appellee on August 14, 1911, as a laborer, and, while in the discharge of his duty as such, was, on said date, injured by reason of the carelessness and negligence of appellee's agents and representatives, and without any fault or carelessness on his part contributing to said injury; that plaintiff was engaged in loading...
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This is a suit on a promissory note executed by appellants to appellee for $2,700, dated March 8, 1908, with certain credits thereon amounting to $1,101.14. It was alleged by appellant that the note was *Page 629
given for a Stoddard-Dayton automobile, sold to them by appellee; that the automobile was warranted to be new and perfect in its parts; that the car was defective and appellants were com...
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On December 21,1910, while the appellee, Willard Burk, was attempting to drive a team of horses across appellant's track in the city of Greenville, he was thrown from the wagon and sustained the personal injuries for which he sues in this action. This is the second appeal in this case. A full statement of the material facts will be found in the opinion rendered by Justice Talbot in 146 S.W. 600. T...
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A writ of attachment was sued out and caused to be levied by the appellee bank upon two mules and a wagon as the property of the appellant. Appellant replevi-ed the property after the levy of the attachment writ. This suit was by appellant to recover damages for the alleged wrongful suing out and levying of the writ of attachment upon the two mules, as being within the exemption laws of the state...
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By the petition plaintiff sued the railway company for: (1) $20 per month from October 5, 1902, until March 1, 1904, as money paid out by plaintiff for additional help in having the United States mail delivered from the depot to the post office at San Augustine; and (2) for $38.85 as paid by plaintiff for the hire of several persons to assist in work done for the company; and (3) $275 for overtime...
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Statement of the Case.
Appellees and others recovered a judgment against appellant and others for the land in controversy in the district court of Matagorda county in 1897, which was affirmed by the Court Civil Appeals June ______ 1898. See Petrucio v. Gross, 47 S.W. 43. The issue in that suit was as to whether Dick's Island, on which the land in controversy is situated,...
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Appellant sold to C. E. Stacey, doing business under the name of the Farmers' Rice Company, 400 tons of rice bran, the contract of sale being evidenced by letter dated October 17, 1910, and reading as follows: "Farmers Rice Co., Houston, Texas – Gentlemen: We beg to confirm sale to you of 400 tons of rice bran at $13.90 per ton of 2,000 lbs. net to us f. o. b. cars our mill. This bran to be tagged...
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This suit was brought by appel-lee to recover damages for personal injuries sustained on account of the alleged negligence of appellant, for whom he was then working as a car inspector and repairer at Valley Junction. The negligence alleged consisted of the failure of appellant to furnish him with a reasonably safe place to work, in this, that it permitted a ditch running across a portion of its y...
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The first and third assignments are here considered together as presenting the controlling question in the appeal. The contention made by the assignments is that the evidence established title in appellant to the land sued for and wholly failed to establish any title residing in appellee, and that the court erred in failing to so conclude as a matter of law.
The deed executed by Jones, the common ...
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This was a suit by S. Joachim, for himself, and as temporary administrator of the estate of his deceased wife, in which his five minor children, the heirs of the wife, were also joined as parties plaintiff, against H. Hamilton, H. Prince, and A. E. Stimson, as defendants.
The pleadings are very voluminous, and for the purposes of this opinion it is sufficient to say the petition alleged that Stims...
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This is a suit to recover damages for killing two cows belonging to appellee. The evidence shows that the cows were killed by appellant's train in the town of Waller, at a place where the appellant was not required to fence its track. Grass was growing upon the railway track, and cattle and horses were accustomed to graze upon the same, which fact was known to the trainmen operating appellant's tr...
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The appellant sued the Fleming-Morton Company, a private corporation, on three promissory notes aggregating $3,565.18, exclusive of interest and attorneys' fees. R. J. Morton, J. W. Fleming, and Giles McKinnon were also made parties defendant in the suit and a recovery sought against them as indorsers or sureties on some of the notes. Judgment by default was rendered against the Fleming-Morton Com...
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This suit was instituted by appellee against appellant to recover damages to his land and crops, suffered by reason of overflow on account of its alleged failure to construct the necessary culverts, ditches, and sluices as the natural lay of the land required for its necessary drainage, as well as for a mandatory writ of injunction requiring appellant to construct such culverts and sluiceways as w...
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Plaintiff alleges that she is the surviving wife of Patrick F. Cor-rigan, deceased, and that the property described in her petition was community property of herself and her said husband, and that as the surviving wife of her said husband, she is lawfully entitled to one-half thereof, and that at his death he left a certain sum of money and household furniture, that her said husband was seised and...
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(after stating the facts as above). Prior to 1905 the statute applicable in suits like the one resulting in the judgment appealed from was as follows: *656 “The court shall enter a decree directing the partition of such real estate, describing the same, to be made in accordance with the respective shares or interests of the parties entitled thereto, specifying in such decree the share or intere...
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This suit was instituted by the appellees against the appellant to recover damages for injuries to a shipment of cattle. The cattle were delivered to the appellant at Jasper and destined to Ft. Worth. The case was tried before the court without a jury, and a judgment rendered in favor of the appellees for the sum of $190.65. The evidence shows that there was considerable rough handling in transit...
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Appellee sued John Newman, Earl Talley, A. E. Arnold, J. O. McKin*658ney, O. Vollmeft,' and M. S. Arnold in Harris county on certain promissory notes alleging that they resided in Gray county, Tex.; that the notes were jointly and severally executed by appellant; and that a chattel mortgage on certain property was given by them to secure the payment of the notes. Appellants pleaded their privilege...
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This is a suit instituted by appellee to recover the statutory penalty prescribed for the collection of usurious interest. A trial resulted in a Judgment for appellee in the sum of $371.
The following contract or agreement *Page 659
was placed in evidence: "Houston, Tex., Jan. 17, 1911. An accounting has this day been stated between the New York Loan Company, Almon Cotton, sole proprietor, and L....
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M. N. Watson brought this suit against the Texas Seed Floral Company and I. Jacobs to recover damages alleged to have resulted to him from the sale of spurious seed, which he charges he purchased from the said company through the said Jacobs. The petition alleges, in substance, that plaintiff is a farmer and owns and operates a farm in Hunt county, upon which he resides; that the defendant Texas ...
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In this case the First National Bank of Decatur sued the J. I. Case Threshing Machine Company, a corporation, and Helm, Ward Dillehay, another corporation, for $252.73, the appellee bank alleging that the latter was employed by the Threshing Machine Company to represent it in the sale of its machinery and products in Wise county, Tex., and as agents to secure purchasers for the sale of said machi...
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This suit was instituted by R. W. Luttrell against John Stephenson, W. E. Stringfellow, James W. Walker, and James A. Borard and wife, in which ownership in certain land in the city of Galveston was claimed by Luttrell, and it was alleged that he had caused the.land to be filled, in pursuance of the general policy to raise the grade of the surrounding territory; that the lot was a marsh, before it...
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This suit was filed In the district court to recover the sum of $2,500 under a policy of insurance against loss by fire of certain household goods. Plaintiff alleged the issuance of the policy February 4, 1910, for one year, on the property while located in a warehouse at Houston. No premium was paid, but credit therefor extended; premium tendered in suit. The property was totally destroyed Septem...
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Statement.
October 9, 1905, Mrs. Gertrude E. A. Elliott executed a deed, by which she conveyed to her son, John Elliott, and his wife, Melissa Elliott, a certain tract of land comprising 186 9/10 acres. The consideration recited in the deed was $5 cash, love, and affection, and that the grantees were to support and maintain Mrs. Elliott during the balance of her li...
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This suit was brought by appellee against appellant to recover damages for personal injuries received by him while engaged as a switchman in the employ of appellant in its yards at Teague, when endeavoring to couple two box cars to a switch engine; the negligence relied upon for recovery being that appellant permitted its track and roadbed to become so out of repair as to render it dangerous to ap...
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Quoting from plaintiff in error's brief: "This is a suit by C. L. Brown, in the county court of Cottle county, Tex., against the Austin Fire Insurance Company, in which C. L. Brown has declared on a contract of fire insurance alleged to be in the sum of $420, which contract is alleged to have run from September 30, 1910, for 60 days, covering 4 1/2 or 5 tons of broom corn, lost by fire, alleged to...
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In this case the plaintiff recovered a verdict and judgment for $500 for injuries alleged to have resulted from the action of a railroad conductor, which misled and caused the plaintiff to get off of a train upon which he was traveling about a mile before reaching his destination.
We have considered all the assignments presented in appellant's brief, and conclude that no reversible error is shown ...
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April 29, 1913, a bond election was held in the Water Valley independent school district in Tom Green county and resulted in favor of the issuance of bonds for the purpose of building a schoolhouse in that district. Thereafter J. E. Hall and others instituted this proceeding contesting the election. The district court decided the contest in favor of the contestees and upheld the validity of the el...
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Page 800
This is a suit by appellee upon an insurance policy issued by appellant upon the life of Pinkie Denman, deceased. It was alleged that the policy was payable to appellee and Milton Hollins. Upon trial, the court submitted to the jury for its determination the issue of whether or not appellee was named as one of the beneficiaries in the policy and authorized a finding in his favor if the jury so bel...
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Appellee sued to recover from appellant the value of a horse that was killed by falling into a ditch dug by *Page 981
appellant along a street in the corporate limits of the city of Dallas. On the trial of the cause a judgment was rendered for appellee for the sum of $250.
The facts are that appellant excavated a ditch for laying its pipes along Worth street. The ditch was 400 or 500 feet in leng...
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This action was originally brought in the justice's court, precinct No. 1, Dallas county, Tex., by Walter Hogg, against Claude S. Staten and Edgar T. Staten, alleged to be a partnership doing business as the Staten Auto Company, seeking to recover $175 as damages for injuries to a mare belonging to plaintiff, alleged to have resulted from negligence of the defendants' agent and employé in operatin...
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This suit was instituted by appellants against appellees to recover *Page 986
$575 as liquidated damages on a contract for the sale of gin machinery, and in the alternative for that amount as actual damages, by reason of a breach of the contract on the part of appellees. The contract provided for the sale of certain gin machinery at a total price of $1,650, and, among other things, provided as fo...
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This case presents a preliminary question involving the constitutionality of the "special district court of Grayson county," created by Acts 33d Leg. c. 182, which tried the case. At a former term of court, and because of the obvious importance of an early determination of the status of the act creating the court, we certified that question to the Supreme Court. That court sustained the constituti...
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A detailed statement of the history of this cause, discernible from the transcript, is unnecessary in explanation of the particular question Involved; suffice to say that the defendant in error, M. F. Beemer, as plaintiff in the lower court, sued on a vendor's lien note, and recovered judgment for the amount of the note, principal, interest, and attorney's fees against J. H. Wilson, E. L. Myrick, ...
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Appellee brought this suit to recover damages for the value of two horses alleged to have been killed by being run over by the cars of appellant. The evidence shows that the horses were killed within the switch limits of the town of Oakwood. Upon the part of appellee the evidence goes only to the extent of proving that the horses were found dead by the side of a trestle. Neither the appellee nor a...
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This suit was brought by appellees against appellant to recover damages occasioned by its failure to correctly transmit a telegram sent by them to their brokers at New Orleans, La., instructing them to sell certain cotton futures for their account. Appellees, who are residents of Winchester, Tex., on July 26, 1911, believing that the cotton quotations for January, 1912, delivery were too high, and...
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Appellee brought this action against appellant to recover damages for the loss of his left eye, which was injured while at work at the mill of appellant, a corporation engaged in the manufacture of staves, by reason of the negligence of appellant in using a defective lister wheel in the stavemill, alleging that said wheel was defective in that the shaft which supported it was *Page 1092
bent and ...
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This is a writ of error from a judgment of the district court of Henderson county, wherein defendant in error in an action of trespass to try title recovered from plaintiffs in error a certain tract *1095 of land out of the Oaro league in Henderson county, Tex. The cause was submitted to the court without a jury, and the judge found the following conclusions of fact, to wit: “I find that th...
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Appellant sued to recover the sum of $450, alleged balance due for boring a well, alleging that he had entered into a contract with appellee to bore a well, for which he was to pay the sum of $2 per focjt for the first 100 feet, $2.50 per foot for the second 100 feet, and $3 per foot for the third 100 feet; that it was agreed that, if the water in the well was insufficient to support a'pump, and t...
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This is a damage suit for the killing of appellee's mule at a public crossing near McLean, Tex., originating in the justice court of Gray county, and, from a judgment for appellee, the case was appealed to the county court, where, upon a trial de novo, judgment was again rendered in favor of appellee for the sum of $150. Numerous errors have been assigned by appellant in this court, which it will ...
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Plaintiff in error sued J. H. Hill and A. E. Masterson as makers of a promissory note for $6,000, dated December 23, 1909, due 90 days after date, payable to the order of plaintiff in error. It was alleged that Masterson, before the delivery of the note, indorsed his name across the back thereof, obligating and binding himself to pay the note according to its terms and effect, and that the note wa...
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This is a suit instituted by appellant against appellees in the district court of Fisher county, upon a promissory note, payable to appellant, dated December 17, 1911, payable March 17, 1912, bearing interest at the rate of 10 per cent. per annum from maturity, with the usual stipulation for 10 per cent. attorneys' fees. The appellees answered by general and special demurrers, general denial, and ...
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This suit was brought by appellee in the justice court of Hill county to recover $166 and interest of appellants on an account contracted by the First State Bank of Archer City, the payment of which is charged to have been assumed by appellants, both of whom are residents of Archer county, Tex. Appellants filed a plea of privilege to be sued in their own county, which plea was heard by the court ...
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This suit was originally brought in the justice court of Collin county, Tex., by the appellees against the appellants for damages to certain eggs and chops shipped with a car load of live poultry from McKinney, Tex., to Los Angeles, Cal. Appellees recovered judgment in the justice court. Notice of appeal was given by appellants and appeal perfected by filing the appeal bond to the county court of ...
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The following statement of the nature and result of this suit is taken from the briefs of the parties, with such changes as are found to be necessary:
In 1907 the appellant filed this suit against the Citizens' Railway Light Company, and on October 28, 1907, the cause was ordered placed upon the jury docket of the district court of Tarrant county. It remained upon such docket without further actio...
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Appellees sued the Sweet-water Cotton Oil Company to recover the sum of $5,056.21 and to foreclose a lien. Plaintiffs alleged: That they leased the oil and cotton gin plant of appellants, including machinery, fixtures, etc. That said plant needed repairs, which plaintiffs agreed to make, and for which appellants agreed to pay. That said lease was to continue for the term of ten months and provide...
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At a former term this case was affirmed without considering the assignments of error for the reason that same did not comply with rules 24 and 25 (142 S.W. xii), recently promulgated by the Supreme Court for the government of the Courts of Civil Appeals. Subsequent to the affirmance of the case the Supreme Court held the rules so promulgated to be in violation of articles 2061 and 2062, Revised St...
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Defendant in error sued the plaintiff in error upon a fire insurance policy for $650, covering his household furniture, etc., alleging the issuance of the policy December 11, 1909, for a period of three years therefrom, the loss of the insured property, demand for payment, and refusal. The plaintiff in error answered by general denial and special plea, denying liability on the ground that by the p...
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On July 7, 1913, appellant filed its petition in the district court of Hill county, Tex., to the September term thereof, to recover on a note for $10,025, dated September 11, 1912, due on demand, with interest at the rate of 10 per cent, from maturity and 10 per cent, additional for attorney’s fees; also to recover the sum of $7,604.10 due upon overdrafts, and to foreclose the mortgage lien exe...
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Appellant sued appellee on two fire insurance policies, one for $1,000, the other for $1,500, insuring a certain brick house in Houston. Tex., which was consumed by fire on January 20, 1911. The defenses were that the total insurance on the building was largely in excess of its value; that the house was left vacant and was vacant at the lime of the fire, and thereby the policies were forfeited; th...
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This suit was brought in the district court of Harris county, Tex., by appellee, M. Sapp, to recover damages for personal injuries alleged to have been sustained in the service of F. E. Ebersole and the Home Telephone Company. The cause was submitted to a jury, and they returned a verdict in favor of the plaintiff against F. E. Ebersole for the sum of $1,000. Upon the verdict as returned judgment ...
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The appellee in this case, plaintiff in the court below, sued the appellant, the insurance company, upon an insurance policy, embracing an automobile, in answer to which the defendant, which we gather from the pleadings in the brief, interposed numerous defenses, which we do not deem necessary to set out.
The appellant, in its brief in this cause, does not seem to think that the policy of insuranc...
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This is a suit brought by the Texas Fuel Supply Company, a partnership, against Harry Harlan, as defendant, to recover the sum of $350, the value of 17,500 face brick alleged to have been purchased of plaintiff by defendant Harlan about February 20, 1912. Defendant Harlan filed his second amended answer and cross-action on which the cause was tried (1) denying the purchase of said brick and his l...
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On the 30th day of September, 1912, appellant and appellee entered into a written contract for the sale of a certain stock of confectionery and fixtures owned by appellee in Hale county. By the terms of the contract the parties were to invoice the stock, foot up the liabilities of the business, deduct the liabilities from the invoice price, and appellant bound himself to pay to appellee the differ...
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On August 8, 1908, the appellant and appellee M. C. McCrummen entered into a contract for the sale by appellees to appellant of a certain half section of land in Lubbock county. It was stipulated in the contract that appellant should execute his note for $320, and secure the same by a mortgage on certain personal property set out in the contract, which said note should be delivered to appellee McC...
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This is a suit instituted by appellant against 11 of the Glaspey family, two Mullens, and six Clines to enforce specific performance of an alleged contract to convey to him a tract of 100 acres of land out of the Francis Moore league in Brazoria county and in the alternative for $1,500 damages arising from the increased value of the land. Appellees answered by general and special demurrers and gen...
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This is a suit instituted by appellee, a widow, of Franklin county, Ohio, against L. H. Payne, William J. Brewer, Evan A. Evans, and John T. Evans to cancel certain deeds made by her to Payne and Brewer, by Brewer to Payne, and by Payne to Evan A. Evans. She alleged that the deed from her to Brewer and Payne was obtained by certain fraudulent representations made by appellants, by which she was in...
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This suit originated in the county court of Lavaca county, and was an action by appellees for the recovery of $500 as commissions alleged to be owing to them by appellants for the alleged services of appellees in assisting appellants to effect an exchange of certain real properties owned by them for other property owned by one H. S. Dew and his wife. Appellees recovered a judgment in the trial cou...
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At a former term this case was affirmed without considering the assignments of error, for the reason that same did not comply with rules 24 and 25 (160 S.W. 438) recently promulgated by the Supreme Court for the government of the Courts of Civil Appeals. Subsequent to the affirmance of the case the Supreme Court held the rules so promulgated to be in violation of articles 2061, 2062, Revised Statu...
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Appellant instituted this suit against the city of San Antonio, its mayor, Clinton G. Brown, and J. Frank Gallagher, its treasurer, to restrain the payment by the city of San Antonio to a certain bank of a commission of 1.99 per cent. for the sale of certain improvement bonds issued by the city in the sum of $3,450,000, and the payment of a fee of $3,000 to a firm of attorneys of New York City. It...
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This is a suit of trespass to try title, brought by appellant to recover laud in Coleman county, Tex. *Page 1171
Appellees, in addition to a plea of not guilty, alleged they claimed under a deed executed by E. N. Wilson and A. J. Burke, Jr., who were appointed by the commissioners' court of Brazoria county to sell said land; that said deed had been ratified by said court; that their title was res...
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Yoakum county instituted this suit in the district court of Tarrant county against C. C. Slaughter, for the sole benefit of appellant's public schools, to recover title to, the possession of, and rents from, leagues Nos. 82, 83, and 84, and portions of leagues Nos. 81 and 85 (aggregating 17,712 acres of land) situated in Hockley and Cochran counties, alleging such leagues to be a part of the 300 l...
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The judgment of the lower court in this case was affirmed at the last term of the court without a written opinion. Appellant, in due time, filed a motion for a rehearing, and assumes that we declined to consider its assignments of error, because they were not in compliance with amended rules 24 and 25 (142 S.W. xii), promulgated by the Supreme Court for the government of this court, and, therefore...
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At a former term of this court a judgment of the district court of Grayson county was by this court affirmed. Missouri, Kansas Texas Ry. Co. v. Harriman Bros., 128 S.W. 932. A writ of error to the Supreme Court of this state was denied. Subsequently the Supreme Court of the United States allowed a writ of error to this court, and after consideration of the record directed "that the judgment of th...
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Appellee, the Mineola State Bank, instituted this suit against the First National Bank of Mineola, Tex., and the Citizens' Compress Company of Mineola, Tex., for the value of certain cotton. The material parts of the amended petition, upon which the case was tried, are as follows: That the defendant Citizens' Compress Company is engaged in the business of compressing cotton; that it stores and hol...
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Action in trespass to try title by Cobb against appellant for 48.94 acres of land situated in El Paso county in the Socorro grant, resulting in judgment in his favor.
On February 11, 1858, the Legislature enacted this law:
"Section 1. Be it enacted by the *Page 609
Legislature of the state of Texas, that the state of Texas hereby relinquishes all right and interest in the following described land...
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The appellee, Mrs. A. N. Finklea, sued the appellant, the Pecos
Northern Texas Railway Company, in the district court of Randall county to recover damages alleged to have resulted from the negligent killing of her son, R. H. Finklea, while employed by appellant as brakeman on one of its freight trains. A trial resulted in a verdict by the jury and judgment thereon in favor of the appellee for the...
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On March 19, 1908, the Alamo National Bank recovered judgment against the city of San Antonio for $8,644.11 on warrants owned by the bank and issued by the city for salaries and wages, and enjoining the city from diverting the general fund of the city for the fiscal year 1903-04, against which said warrants were drawn, so far as that fund was at that time or might thereafter become applicable to t...
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The suit was commenced by a petition filed in August, 1910, and continued from term to term until the June term, 1912, of the court, when appellant's third application for a continuance was overruled. The action of the court in this respect, made the basis of the first assignment of error, will not be reviewed because not presented in a bill of exceptions as required by rule 70 for the government ...
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It conclusively appeared that the services performed by Speed and the expense incurred by him were performed and incurred by him while acting as receiver, and not while acting as an employé of James as receiver. Having found, correctly, we think, that the appointment of Speed was void, because he was not at the time a citizen of this state (article 2130, R.S. 1911), and therefore that he was not e...
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On March 5, 1912, the appel-lees filed this suit against the appellants, Carver Bros., a partnership firm consisting of W. I. Carver, Walter Carver, and Jack Carver, and against the Merchants’ & Planters’ National Bank of Mt. Pleasant, seeking a judgment for the sum of' $1,773.39 claimed to be due for money loaned or advanced to Carver Bros, by the bank. The petition al*634leged that in September,...
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This is an action in trespass to try title by the appellee, Windham, against the appellant, Shaw, for a section of school land, situated in Dickens county, Tex.; the appellant, Shaw, in his answer, disclaiming any interest in the land except about 125 acres, with reference to which he specially pleads the statute of limitation of ten years, and also pleads an agreed boundary between him and one J....
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In this case the appellant, C. W. Carter, seeks to recover a judgment for damages for personal injuries received September 21, 1911, while in the service of the appellee. The pleadings and the evidence show that, at the time of the injury, the appellant was the head brakeman on a local freight train operated by the appellee between Texarkana, Tex., and Shreveport, La. The crew to which the appella...
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This is a suit for damages arising from personal injuries, alleged by appellee to have been inflicted through the negligence of appellant. Appellant answered by general and special exceptions, general denial, and pleas of contributory negligence and assumed risk. The cause was tried by jury and resulted in a verdict and judgment for appellee for the sum of $7,500.
The evidence showed that appellee...
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The appellee sued the appellant and recovered a judgment for $328.24 as damages for the breach of a contract. According to the testimony of the appellee, he owned a farm near Sulphur Springs. In the early spring of 1912 he planted a crop of oats on his farm, and in April following, while the oats were growing, he made a contract with the appellant, by the terms of which he (the appellee) was to g...
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The appellant, Gregory, sued the appellee, the Pecos Northern Texas Railway Company, in the district court of Swisher county for damages for personal injuries, alleged to have been sustained while a brakeman in the employ of said company, and, in substance, stated that in the line of his work at a certain switch it was his duty to board a train upon which he was employed, and for that purpose he ...
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Appellee was injured by the neglience of the appellant while helping to unload a car of brick which was standing on a side track of appellant at Irving, Tex. He was standing in his wagon near the car when other cars were propelled against the car load of brick, which he was unloading, and which caused the wagon to be suddenly moved, throwing appellee to the ground, and the fall caused his injuries...
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The appellee, W. C. Graham, brought suit in the justice court against the appellant, the Southern Kansas Railway Company, for damages occasioned by killing a mule of the alleged value of $175. Judgment was rendered in favor of appellee in that court, from which appellant appealed to the county court of Roberts county, in which court appellee obtained judgment for $150 against appellant, and from w...
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Appellees applied for a writ of injunction to the county court to restrain the sale of lots 3, 4, and 5, in block 18, in the town of Falfurrias, under an order of sale issued out of the county court of Brooks county. It was represented that a certain judgment was obtained against J. A. T. Page in the said county court and there was also the foreclosure of an attachment lien on said property. The i...
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Appellee instituted this suit originally in the justice court, for the recovery of $152 alleged to be due as the purchase price of two coal meters sold and delivered to the appellant. The trial there resulted in a judgment in favor of appellee. The cause was appealed to the county court, where it was tried before the court without the intervention of a jury, and judgment in appellee's favor was re...
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This is a quo warranto instituted by the state of Texas, through its district attorney, John I. Kleiber, upon the relation of H.R. Sutherland, to oust appellant, Clark Pease, from the office of mayor of the city of Corpus Christi and place relator therein. Upon a former trial judgment was rendered in favor of Clark Pease, which was reversed by this court (147 S.W. 649). This trial resulted in a ju...
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This is a case instituted by appellee to recover damages from appellant and the San Antonio Gas Electric Company, alleged to have accrued through a shock received from a wire of appellant, which had broken and fallen across a wire of the Gas Company, whereby it had been heavily charged with electricity. There were several grounds of negligence which have been stated with unnecessary elaboration b...
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D. A. Stevens, appellee, brought this suit in the district court of El Paso county, alleging that he entered into two written contracts with appellant for the purchase and lease of certain lands in the state of Chihuahua, republic of Mexico; that among other things in said contracts contained, the appellant represented that the lands so contracted for sale and lease had full and legal rights of wa...
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This is an action by an agent to recover, under an alleged contract, commissions for the sale of land. The case was tried without a jury, and resulted in a judgment for appellee, the defendant below.
Appellant's first, second, third, and fourth assignments of error assail the judgment of the court as contrary to and unsupported by the evidence.
We have carefully read and considered the record, and...
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This suit was brought by S. J. Young, appellee, to recover from appellant, the Artesian Belt Railway Company, damages in the sum of $40,000 for personal injuries alleged to have been suffered by him while a passenger on appellant's road by reason of the wreck or derailment of one of its cars upon which he was riding. Verdict and judgment were for the appellee for $15,500 and costs.
Appellant's fir...
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This is an appeal from the judgment of the Sixty-Eighth district court of Dallas county entered upon the verdict of a jury removing appellant as guardian of the estate of Ernest L. Burns, and appointing in his place and stead the appellee Jennie E. Parker. The proceeding was originally filed in the county court of Dallas county, where judgment was also entered removing appellant, and from which or...
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This action was brought by appellee L. F. Jordan against the Ft. Worth Denver City Railway Company and the Ft. Worth Belt Railway Company for damages alleged to have been sustained by reason of the killing of one horse, of the value of $150, and injury to a piano, $25, and for $1 for medicine for treating the horse, and $3 to city scavenger for removing the carcass of the horse.
The appellee Jorda...
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Suit for damages account personal injuries, resulting in verdict and judgment for $8,000.
It was averred by plaintiff that he was employed by defendant as a section foreman, and on August 19, 1910, he and his crew of men were engaged in unloading rails from a flat car, distributing same about every 30 feet alongside the track, the flat car being at the east end of a train consisting of an engine a...
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On July 29, 1912, the Santa Fé Fuel Company entered into a contract with V. A. Lucier by the terms of which Lucier obligated himself to quarry and deliver to said company at its lime kilns sufficient rock to supply the same to their maximum capacity; the said Lucier to furnish all necessary teams, labor, material, and facilities for quarrying and transporting said rock, which contract was to conti...
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This is a suit for damages instituted by appellant against J. H. Kirkpatrick and A. H. Jones, executor of the estate of B. L. Naylor, deceased, which he alleged accrued to him by reason of a breach of a rental contract by appellees, and the ouster of appellant from certain irrigated garden lands, known as the Barnes tract, between the Frio and Somerset roads in the city of San Antonio, and the con...
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Appellant sued appellee for damages for an alleged breach of a contract of settlement made between them to compensate appellant for personal injuries which she alleged she sustained by reason of the negligence of appellee. The answer consisted of demurrer, seven special exceptions, general denial, and plea that defendant had complied with the terms of the contract of settlement made between plain...
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This suit was instituted by Max Hagendorn against H. L. Cadwallader and E. O. Tenison. There are several counts in the petition; plaintiff alleging, in substance: (1) An express oral contract between himself and the defendant E. O. Tenison to do certain decorating in a two-story house of the said Tenison, situated at the northeast corner of Cedar Springs avenue and Dickason street in the city of D...
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Appellant, D. Holcomb, executed his note, payable to appellee, E. J. Ely, or his order, for the sum of $257, dated March 18, 1911, due November 15, 1911, bearing interest at the rate of 10 per cent. per annum from date and 10 per cent. on principal and interest as attorney's fees. The note was credited October 20, 1911, with $150, and February 3, 1912, with $90. Suit was brought in the county cour...
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This is a suit by appellee, J. C. Vance, against appellant, the Southern Kansas Railway Company of Texas, in trespass to try title to 11 28/100 acres of land in Carson county. Judgment was rendered for the land and for damages in favor of appellee in the district court of Randall county, where the case had been taken on change of venue, from which judgment appellant brings the case to this court o...
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This suit was brought by plaintiff, Joe K. Stephens, to recover damages for personal injuries alleged to have been inflicted upon him while in the service of the defendant railway company as car checker, on or about September 29, 1908.
Plaintiff alleged "that at the time of his injury he was a minor, without any lawful guardian of his person or estate, and that on *Page 704
September 29, 1908, he...
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This suit was instituted by the El Paso Brick Company, a corporation, against A. J. Rose and C. M. *Page 716
Youngberg and the First National Bank of Pecos, Tex. Plaintiff alleged that it had sold to defendant Rose the brick for the construction of a school building at the town of Pecos, and that on June 23, 1911, there remained due and unpaid the sum of $1,723.87; that Rose on or about June 23, ...
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[1] Defendant in error, Call, sued McCullough Plardware Company, a corporation, and J. B. Boles, sheriff of Scurry county, to recover actual and exemplary damages for the levy of an execution upon certain crops. It is alleged the crops were partially gathered, and the ungathered portions matured, and defendant in error claimed them as exempt upon the ground that the ungathered crops were standi...
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Appellant sued the appellee for the recovery of 177 acres of the Jonathan Collum survey situated in Bowie county. Appellee answered by a plea of not guilty. The principal assignment is one which complains of the action of the court in giving a peremptory instruction to find for the defendant.
It was agreed upon the trial that Francis Kirby was the common source of title. Appellant offered in evide...
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Appellee filed this suit in the district court of Roberts county on the 5th day of August, alleging in his original petition, in substance, that on or about the 27th day of May, 1911, he entered into a contract with the defendant to work for it as a driller in the drilling of defendant's well in Roberts county at a stipulated price of $6 per day; that under that contract he worked 25 days. For the...
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This is a suit instituted by R. A. Wheeler against the city of Flatonia in the county court to recover damages for personal injuries to himself and his wife, and also to the automobile in which they were riding, alleged to have been occasioned by the automobile striking a stump in the street of the town. Damages are laid at $800, and it is alleged that the stump constituted a dangerous obstruction...
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This is an action in the ordinary form of trespass to try title, brought by the appellant against the appellees, A. E. Clarkson, G. J. Palmer, and A. W. Palmer. The land involved in the suit is a tract of 50 acres off the extreme north ends of the R. M. Armstrong and Frank Hamilton surveys in Harris county.
The defendants answered by general *Page 955
demurrer, general denial, and plea of not gui...
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The statement of the case, as set out in the brief of appellant Galveston, Harrisbury San Antonio Railway Company, being approved by the appellees and other appellants, we will adopt same: "This suit was instituted by W. H. Ford and J. R. Blocker, in the district court of Bexar county, Tex., Forty-Fifth judicial district, on November 7, 1908, against the Galveston, Harrisburg San Antonio Railway...
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This cause was tried in the district court of Martin county and judgment there rendered on November 29, 1911, that the plaintiff, Chambers, take nothing by his suit and the defendants, Grisham and wife, go hence without day. On January 6, 1912, Chambers perfected an appeal from this judgment by filing a cost bond, and on March 30, 1912, the transcript of the record upon such appeal was filed by hi...
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This is an action of trespass to try title, brought by appellees against the appellants to recover two tracts of land in Jasper county described in plaintiffs' petition; one tract containing 75 acres and the other 225 acres.
The trial in the court below, without a jury, resulted in a judgment in favor of plaintiffs for one-half of the 75-acre tract and all of the tract of 225 acres, and in favor o...
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This suit was brought by appellee against the appellant to recover the title and possession of a tract of 160 acres of land on the L. Thunar survey in Tyler county. The petition alleges title in plaintiff under the statute of limitation of ten years. It further alleges that an acknowledgment of tenancy and release to defendant of plaintiff’s claim to all of said land, except a tract of 30 acres t...
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On the petition of the appellee, Glen Park Company, the judge of the Fifty-Fifth judicial district of Harris county, *Page 966
in chambers, granted a temporary injunction, the nature and purpose of which will hereinafter more fully appear.
Plaintiff in its petition alleged, in substance:
"(1) That about 1906 the Houston Electric Company was desirous of extending its Montgomery Avenue line westwar...
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This appeal is by Charles Hodges and R. C. Sowder from ,a judgment rendered against them in favor of the North Texas State Bank for a conversion of certain personal property upon which the bank claimed a lien. The ease was tried without a jury and the trial judge has filed findings and conclusions as follows: “(1) On September 29, 1909, the defendant Sowder made, executed, and delivered to the ...
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Appellee sued appellant for damages for personal injuries alleged to have been received on the cars of appellant at the hands of appellant's conductor while the conductor was exhibiting his pistol to appellee and another passenger, and which he negligently discharged, thereby wounding appellee in the leg and causing him the injury and suffering claimed in his pleading. The appellant pleaded that i...
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We hardly think it neces-ary to discuss appellant’s assignments specifically, believing as we do that a general disposition will be sufficient. [1] There is no statement of facts, and it is therefore clear that all assignments urging the insufficiency of the evidence to support the judgment must be overruled, for the reason that we have no means of determining, other than from the court’s fin...
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J. F. McKnight, having a contract for the erection of a city hall building in the city of Taylor, entered into a contract with Wm. Lange, who did business under the name of the Lange Manufacturing Company, for furnishing the material and doing certain of the work on said building. At the same time the said manufacturing company, with Robert Strickert and J. S. Williams as sureties, executed a bond...
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J. K. Brown shipped 626 head of cattle from Van Horn, Tex., to Pontiac, Kan. The shipment was handled by the Texas Pacific Railway Company, the Missouri, Kansas Texas Railway Company of Texas, the Missouri, Kansas Texas Railway Company, and the Missouri Pacific Railway Company. The cattle received certain injuries in transit, and all of the roads were sued. The plaintiff had judgment against th...
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This is a suit of trespass to try title, brought by appellants against the appellee to recover an undivided onefourth interest of 80 acres of land out of the Alfred Moore survey in Nacogdoches county. Under an allegation that appellee had cut and removed all the merchantable pine timber on the entire 80 acres, appellants sought to recover the value of onefourth thereof after it had been manufactur...
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This is an action of trespass to try title instituted by E. J. Cowles against Chas. H. White and others to recover certain land in Clay county in which there was a judgment for the plaintiff, and the defendants have sued out a writ of error.
The trial court made the following findings of fact:
"This case involves the title to an interest of Susie B. Bolton in a house and lot in Henrietta, Clay cou...
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On January 26, 1910, J. M. Boyles conveyed to H. E. Detering by quitclaim deed a certain tract of land described by metes and bounds and recited to contain 20 acres, more or less. The consideration recited was $2,500 to be paid in cash. This tract included within its boundaries a tract of about four acres, which was in possession of G. W. Tharp, and it was arranged that Boyles should procure a qui...
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On December 22, 1912, Geo. B. Kirwan sued Alamo Iron Works, a corporation, alleging that said corporation was indebted to him upon two choses in action; one accruing to him and the other held by him as assignee of W. W. Riley. Later said Riley by leave of court intervened as warrantor of the choses in action assigned by him to Kirwan. The case comes to us upon one assignment of error, by which Kir...
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Only two assignments of error are presented by the briefs of appellants, both complaining of the judgment in the matter of costs.
By the first assignment appellants complain of the judgment in adjudging that defendants, Maria Stahl, Philip F. Wagner, and Leila M. Stahl, recover their costs. The trial court adjudged the costs between the different parties under article 1438, R.S., providing that "t...
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Counsel for appellant contend that the trial court committed reversible error in refusing to accord to appellant's claim a preference over general creditors, and rely upon Continental Nat. Bank v. Weems,69 Tex. 489, 6 S.W. 802, 5 Am. St. Rep. 85, in support of that contention. Counsel for appellees controverts that proposition and presents the contention that Bank v. Weems supports the action of t...
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Findings of Fact.
Appellee shipped a car load of corn (52,000 pounds) from Verden, Okla., to Orange, Tex., consigned to Webster Co., shipper's order, and drew on Webster Co. through the bank at Verden with bill of lading attached. On account of delay in the shipment Webster Co. declined to receive the corn. On February 21, 1910, appellee made an agreement with the a...
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Appellants sued appellee in the county court to recover $500, alleged to have been deposited by them with defendant as earnest money on a proposed sale of land by defendant to plaintiffs. It was alleged that defendant had failed to comply with his contract, and the plaintiffs were entitled to the return of the earnest money. Defendant answered that plaintiffs had breached the contract and refused ...
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This suit was brought by appellee against the appellants, who compose the firm of John Christensen Co., to recover damages for personal injuries sustained by him and his wife as the result of the alleged negligent overturning of an automobile of appellants in which appellee and his wife were riding as passengers, and which it is alleged was then and there being operated "by appellants and their a...
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The following statement of the nature and result of this suit is taken from the brief of the defendants in error:
"This suit was brought in the district court of Hill county, Tex., by E. A. McElroy, Sr., E. S. McElroy, E. A. McElroy, Jr., O. B. McElroy, Palley Day McElroy, Idona Carr, and her husband, John Carr, and J. H. McElroy, as next friend for Oscar McElroy, a minor, as plaintiffs, against D...
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This is an action by J. B. Roberts, appellee, as assignee of Mark Miller, to recover of appellant compensation, in the nature of broker's commission, for securing a purchaser for certain real estate belonging to appellant, and which appellee Mark Miller claimed to have been authorized by appellee to sell. The suit was instituted by an original petition filed on the 27th day of January, 1912. On th...
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This suit was filed in the district court of Dallas county, Tex., by William Sears, by next friend, G. R. Sears, to recover damages against the Chicago, Rock Island Gulf Railway Company, on the allegations that on December 2, 1906, the plaintiff, who was then temporarily of unsound mind, took passage over the defendant's line of railway from Lawton, Okla., to Dallas, Tex.; that it was the defenda...
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This is an action brought under article 1385, Revised Statutes 1911, by Palo Pinto county against Stephens county to establish the boundary line between those counties. The honorable district judge of Parker county, before whom the cause was tried, made the following findings of fact: “(1) I find that in October, 1883, the commissioners’ court of Stephens county appointed W. M. McConnell, then ...
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This is a suit for compensation, alleged to be due from appellees to appellant for services rendered as a broker in the sale of a tract of land. The county court rendered judgment for the defendants, and the plaintiff has appealed. The judge filed findings of fact which are supported by testimony, and adopted by this court. The facts show that appellant procured two prospective purchasers, who ...
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This suit was brought "by appellant against appellee to recover $224.95 alleged to be due upon an account for goods and merchandise sold appellee by .appellant. Appellee, defendant in the court below, acknowledged the indebtedness claimed by plaintiff, but pleaded as set-off and •counterclaim thereto damages claimed to be ■due it by plaintiff for failure to comply with its contract to repurchase ...
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On the 15th of January, 1912, appellant, Turner, owned two well-trained dogs, which were shown by the evidence to have been killed by appellee's son in accordance with his, appellee's, directions. It appears that a short while before these dogs were killed 18 head of appellee's sheep had been killed, presumably by dogs, though it does not affirmatively appear that these dogs had anything to do wit...
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Appellee was an employé of appellant, and while at work in the performance of his duties in January, 1903, in appellant's machine shops situated at Walnut Springs, Tex., was struck in the eye by a piece of wood which caused the loss thereof. Some months thereafter appellee signed a written release for such damages as he had *Page 1011
sustained in consideration of $74.25, recited therein, but at ...
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J. M. Edgmon recovered a judgment in the sum of $1,500 against the Mansfield Oil Mill Company for personal injuries received by him while in the employ of that company. The defendant has appealed.
There were numerous grounds of negligence alleged, but the charge permitted a recovery upon the theory either that the defendant had failed to furnish plaintiff with a safe and suitable place to work or ...
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Conclusions.
The single question presented for our determination is whether the court correctly admitted the book of entries offered by appellee supporting his case. We are of opinion that neither of the objections thereto can be sustained. Within the *Page 1014
meaning of the law, we think that the book was one of original entry. It is not an objection to the comp...
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P. T. Grogan, Jr., sues John Spaulding and 'Will Spaulding, composing the firm of Spaulding Bros., to recover a sum of money paid to the defendants for a certain automobile; the petition alleging that at the time of said payment the plaintiff was a minor, ‘and that on reaching his majority he had promptly elected to rescind the purchase.
The defendants answered generally, and specially by a plea o...
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Appellee sued appellant in the district court of Ellis county, Tex., on a promissory note for the sum of $927.41, dated November 24, 1906, and payable to appellee, guardian. The note bore interest at the rate of 8 per cent. per annum and provided that if the same was not paid at maturity and was placed in the hands of an attorney for collection, or if suit was brought thereon, to pay an additional...
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This is a suit brought by appellant against appellees in the county court of Reeves county, Tex., at the April term, A.D. 1912, to recover $450 and interest, as is shown in plaintiff's petition. On the 6th day of April, 1912, the case was called for argument and consideration of demurrers before the court, and the court sustained the general demurrer to plaintiff's petition. The plaintiff excepted...
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The Big Muddy Coal Iron Company brought this suit against Richard Cocke, doing business in the name of Richard Cocke Co., for the sum of $478.46 for coal, and alleged the following cause of action: On the 5th day of August, 1909, defendant ordered from plaintiff 35 cars of coal of grade and quality known as "Big Muddy coal" at a price of $1.65 per ton f. o. b. mines, weights at shipping point to...
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V. C. Hall and R. E. Wilkinson sued W. L. Hutto and the Western Naval Stores Company to recover damages in the sum of $3,600, alleging that plaintiffs had leased from W. L. Hutto a certain sawmill plant for a term of 3 1/2 months, to wit, from September 1st to December 15th, with the privilege to plaintiffs of buying the sawmill and appurtenances at the termination of the lease at the price of $1,...
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This suit was brought by appellants, the widow, children, and mother of A. J. Higginbotham, deceased, against the appellee to recover damages for the pecuniary loss sustained by them by the death of said A. J. Higginbotham, which it is alleged was caused by the negligence of appellee's agents and employes in the operation of one of its trains. The petition alleges, in substance, that the said A. J...
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This suit was brought by Theresa Urban, a feme sole, against the San Antonio Traction Company, a corporation, for damages for personal injuries to plaintiff. The petition alleged: That on or about the 18th day of February, 1911, plaintiff was a passenger on one of the defendant's street cars running out East Commerce street, in the city of San Antonio, and when said car arrived at a point north of...
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Plaintiffs, Lenora Bush and Julia Rossie Bush, minor, brought this suit against the Producers' Oil Company and the Texas Company to recover damages for the death of the husband and father, respectively, of plaintiffs. The amended petition upon which the trial was had charges, in substance, that the appellant was a private corporation of the state of Texas, engaged in the business of prospecting fo...
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Appellees instituted this suit in. the district court of Clay county against appellant, alleging that he had in March, 1904, sold 267 acres of land situated in Clay county for the sum of $2,000, one-half of which belonged to appellees, and which appellant had never accounted for, but had fraudulently converted to his own use. Appellant presented a plea of privilege to be sued in Jeff Davis county...
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Appellees, stockholders of several banks in Hill county, united as plaintiffs and brought this suit against the county judge, the commissioners' courts of two administrations, W. H. Knight, a former tax collector of Hill county, and B. L. Hodge, who was then collector of taxes. The allegations, in substance, were that said commissioners' courts fraudulently and willfully set up and maintained a hi...
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This suit was originally instituted by Damon W. Davis, who died before trial, and his widow, Mrs. Matilda Davis, appellee, as his executrix, and who resides in the state of Illinois, afterwards made herself plaintiff and prosecuted the suit to final judgment. The suit was brought to recover of C. E Jackson, Andrew Jackson, and W. T. Squibb, as makers, and of the appellant Carrollton Press Brick Co...
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William Cooper brought this suit against Robischung Bros. to recover damages for personal injuries sustained by him while in the employment of defendants. A trial before a jury resulted in a verdict and judgment for defendants. Plaintiff has appealed.
The evidence shows that the defendants were engaged in installing bathtubs in the Bender Hotel in the city of Houston which was then being construct...
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This case originated in the Fifth supreme judicial district, and reached the docket of this court by reason of an order made by the Supreme Court for the purpose of equalizing the business of the Courts of Civil Appeals. This is the second appeal, and the decision of the Fifth Court of Civil Appeals will be found reported in Bottom v. Tinsley, 134 S.W. 833, which report contains a full statement o...
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This is an appeal from a judgment in a suit instituted by appellant against the Chicago, Rock Island & Gulf Railway Company for the recovery of damages to a shipment of cattle from Ft. Worth, Tex., to Lindsey, Okl., during the month of April, 1911. The case was tried before a jury, and the only grounds of negligence alleged by appellant as the bases of recovery that were submitted in the court’...
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Plaintiff in error sued defendant in error in the court below for damages for personal injuries to himself and wife, and upon trial before jury recovered verdict for $1, followed by judgment accordingly. From said judgment the case is brought here for review by writ of error.
The facts shown by the record and in our own language, as testified by Mr. and Mrs. Jackson, are, in substance, that Jackso...
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A ditch, which had been excavated* across one of the streets of the city of Ft. Worth for the purpose of laying a sewer pipe, was filled in such a manner as to leave an embankment of dirt elevated above the level of the street approaching the embankment ffrom either direction. In passing along the street at night an automobile in which Mrs. J. M. Gutzman was riding, and which was driven by her fa...
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This suit was brought by appellee against the appellant to recover the sum of $125, the alleged value of a cow, the property of appellee, and alleged to have been negligently killed by appellant. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $100.
The cow was struck and killed by a train of appellant which was being operated in app...
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This is a suit by appellants to recover damages of appellees for the breach of a contract, and the appeal is from a judgment sustaining a general demurrer to the plaintiffs' original petition. Plaintiffs, Hall, Fredericks Fish, a firm of lawyers, sued appellees for a breach of the following contract: "State of Texas, County of Potter. This agreement, made and entered into by and between the Sadle...
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Appellee sued appellant in the district court of Hunt county for damages for personal injuries, and upon trial was awarded verdict by a jury for $3,500, followed by judgment, from which this appeal is taken.
Appellee charged, in effect, that while *Page 1188
driving a horse attached to a delivery wagon over one of the streets of Greenville, and when he reached the track of appellee where it cross...
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On October 23, 1912, a temporary injunction was issued by order of Hon. W. S. Anderson, judge of the Thirty-Seventh judicial district of Texas, restraining the appellee from tearing down and removing certain grand stands, bleacher stands, and other improvements which had been erected by appellee upon premises belonging to appellant during the time when appellee had such premises leased. It was all...
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Mrs. V. F. Withers, a widow, sues in trespass to try title to recover from Etheyne R. Boaz the south 50 feet of lot No. 1 of the C. T. Hodge addition to the city of Ft. Worth. The real controversy is one boundary between the south and north halves of the lot and involves a strip of land six feet in width. J. O. Crenshaw, the original owner of the entire lot, was made a party defendant as a warrant...
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This suit was originally brought by the appellee, Mrs. Nancy E. Brawner, against the Brazoria Land Cattle Company and A. C. Swanson. She alleged in her petition that said company agreed to sell her two tracts of land in Brazoria county, one of 200 acres, and one of 160 acres, the latter being the N.W. 1/4 of section 30, H. T. B.R. R. survey, and to deliver to her, within 90 days from the date of...
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This suit was in trespass to try title to recover 160 acres of land in Parker county.
Plaintiffs and defendants all claim title as heirs of Henry Owens, deceased, who owned the land at the date of his death. Mary Jordan, one of the plaintiffs, was a sister of Henry Owens, and the other plaintiffs are descendants of Aaron Walker, deceased, who was a brother of Henry Owens, and the remaining plainti...
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A motion has been made to dismiss the writ of error, on the ground *Page 1199
that the writ of error supersedeas bond is payable solely to George P. Cheney, and that at the time said bond was executed and filed Cheney was dead, as was shown at the time by sworn statement of his death, made by his widow, Sarah Cheney, to which is attached a copy of letters testamentary issued to her as independent...
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In this suit appellant sought to contest an election, and restrain the Secretary of State from canvassing the vote and certifying the result of said election, by which a certain amendment to the Constitution was adopted. The trial court sustained a general demurrer to the petition, and after the case was submitted in this court the controlling question was certified to the Supreme Court, and th...
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Appellant brought this suit against appellee to recover the sum of $384.50, balance claimed to be due for rent of a certain building situated in the town of Lampasas, which had been rented to him by appellant and which was used by appellee as a printing office, and to foreclose his landlord's lien upon one 6-column quarto Country Campbell press, one typewriter, certain type and type cases, one des...
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W. D. Lambert, claiming the merchantable pine timber on 85 acres of land, part of a 160-acre survey out of H. T. B. section No. 15 in San Augustine county, and Ned Douglas, intervener, claiming title to said 85 acres, brought this suit against the Houston Oil Company of Texas for the recovery of same. It was agreed that the record title to the land is in the Oil Company, and that it is entitled t...
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This is an injunction suit, the nature and result of which are sufficiently indicated by the trial judge's findings of fact and conclusions of law, which are as follows:
"Findings of Fact.
"I find that the original town tract of La Grange was laid out into streets, blocks, and alleys about the year 1838, and I find that as an addition to the original town tract of La G...
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This suit originated in a justice of the peace court but was appealed to and finally tried in the county court, where the plaintiff obtained a judgment against the defendant for $125, and the defendant has appealed.
The cause of action was predicated upon the fact that a cow belonging to the plaintiff fell in a deep hole in the ground and broke her neck. The hole referred to was on the defendant's...
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This suit was brought by appellee W. F. Brenner against Carrie Brown, O. Frosch, V. T. Watson, C. E. Heidingsfelder, and Camille Blue in the nature of a bill in equity for the purpose of securing the cancellation of a deed of conveyance of certain lots of land in the city of Houston, wherein plaintiff's father, Henry Brenner, was grantor and Carrie Brown was grantee, and to secure the cancellation...
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This is a suit to recover upon a note for $659.20, executed by appellee in favor of appellant.
According to appellee's testimony, on October 2, 1912, he was indebted to appellant in the sum of $240 principal and $19.20 interest, represented by his note, and secured by a chattel mortgage, and also the sum of $480 principal, with interest for some nine or ten years, which latter amount was barred by...
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Henry Beatty brought suit against O. E. McKneely in tbe justice court of Galveston county to recover *19 $152, alleged to be double tbe amount of usurious interest be bad paid defendant, and on a trial in that court recovered a judgment for $144. Defendant prosecuted an appeal from tbis judgment to tbe county court, where tbe plaintiff amended bis pleadings, and therein, in addition to tbe clai...
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This action was commenced in the county court of Harris county by the Theodore Keller Company against E. L. Mangum, to recover $214.58 alleged to be due. The following are, substantially, the allegations in the petition: "That said defendant is justly and truly indebted unto your petitioner in the sum of $214.58, and for cause says that your petitioner are cotton factors engaged in the business of...
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This is an action in trespass to try title by W. S. Frazier and wife against the Houston Oil Company, to recover the title and possession of 160 acres of land, part of the G. W. Brooks survey in Hardin county. Plaintiffs sought to recover upon a limitation title under the statute of limitation of ten years. It was agreed "that the record title was, from 1882 until about the first of 1890, in E. A....
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The Bay City Bank & Trust Company brought this suit against G. R. Brown, predicating its right of recovery upon four promissory notes, executed by the defendant and secured by a vendor’s lien on a certain tract of land, which lien the plaintiff sought to have foreclosed. The defendant pleaded a general denial and averred that the first note had been paid, and that the others were not due when t...
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In 1905 the appellee was engaged in the business of manufacturing and selling crates and fruit baskets at Nacogdoches, Tex. In July of that year it *Page 26
received the following order from the appellants, Burton Beard:
"Mt. Selman, Texas, July 6, 1905. Nacogdoches Crate Lumber Company, Nacogdoches, Texas – Gentlemen: Inasmuch as the phone service was so poor this afternoon when we were trying...
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This suit was brought by appellees against the appellant in a justice court of Newton county. Plaintiffs' original petition filed in the justice court on August 29, 1911, contains the following allegations and prayer: "That heretofore, to wit, on the 30th day of August, 1907, defendant executed and delivered to plaintiff his obligation in writing to pay to plaintiff in the sum of $200, which oblig...
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Action of trespass to try title brought by Eli Ratcliff against Sarah Ratcliff to recover one-half of a certain tract of land in Jefferson county. In addition to the ordinary allegations in suits of trespass to try title, the plaintiff pleaded the statute of limitations of ten years. Defendant answered by general denial and a plea of not guilty and further pleaded that in 1893 the land in controve...
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The following statement of the nature and result of the suit is taken from appellant's brief, which is admitted by appellees to be correct:
The appellant, George F. Wilborn, filed this suit on August 16, 1912, against J. W. Terry, Daniel Ripley, and F. G. Pettibone. Before trial the suit as to Pettibone was dismissed. Recovery of damages in the sum of $3,534 is sought, and to support his action ap...
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This appeal is from an order of the district judge of Colorado county, made in chambers, granting a temporary injunction in a suit for injunction brought by appellees against appellant. The petition upon which the injunction was granted alleges in substance: That plaintiffs are the owners of certain lots in the city of Columbus, which are fully described in the petition. That some time in the spri...
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This is an appeal from a judgment in appellee's favor in the sum of $2,500, account damages arising from personal injuries. Appellant was engaged in the construction of a line of railway between the cities of Galveston and Houston, and appellee was in its employ as driver of a track automobile. While driving the automobile in the discharge of his duties, the same was derailed, and appellee sustain...
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The principal questions made on the appeal are founded on the several assignments of error, which may here be disposed of together, that challenge the conclusions of law made by the court that appellee was not owing appellants in damages for the value: (1) Of the trees cut and removed from the land; or (2) for the turpentine taken from the trees; or (3) for the rental value of the land during the ...
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Appellee brought this suit to recover of appellant a balance alleged to be due on a promissory note for $800, executed by appellant in favor of appellee December 6, 1907. Appellant, by a verified plea, alleged that he and appellee on April 26, 1909, entered into a copartnership for the purpose of buying and selling cattle, setting out the terms of said copartnership, among which was that the profi...
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In a suit by W. A. McNeill against Carrie Nell Duller and her husband, McNeill recovered a judgment for money against both defendants, and foreclosing mortgage and vendor's liens against certain real estate. From this judgment Mrs. Duller appeals. She gave a supersedeas bond signed by herself and several sureties. The bond is payable to McNeill and also against Duller, the husband. Appellee, McNei...
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The appellee, Bankers’ Trust Company, instituted this suit against appellant, Fidelity & Deposit Company, on a bond of indemnity in the sum of $4,000. The petition alleges, in substance: That B. M. Levy contracted in writing with J. R. Darnell, whereby Darnell bound himself to furnish all material and construct a certain house, for the sum of $5,400. That for the purpose of assisting said Darne...
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This appeal is from a decree of the county court at law of Harris county granting a temporary injunction restraining the defendants from seizing and selling under execution a cash register machine and a refrigerator or ice box owned and used by the appellee in carrying on his trade of butcher. The appellant M. F. Hammond is the sheriff of Harris county. The other appellant, the Houston Packing Com...
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The action was by appellants against appellees in trespass to try title to about 388 acres of land out of the southeast corner of the 1555-acre tract in the Tatman league. The appellants were the heirs of R. N. Dicken, to whom U. M. Gilder conveyed the same land on October 16, 1863. The appellees pleaded not guilty and vouched in their warrantor. The appellees claimed the land under deed from the ...
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If for no other reason, appellants should be denied a reversal of the judgment on the grounds urged in their first and second assignments, because same were not distinctly set forth in their motion for a new trial as required by rule 24 for the government of Courts of Civil Appeals. 142 S.W. xii. If, however, those assignments were entitled to consideration, it is not at all clear they should be s...
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This is an action in trespass to try title to certain lands and for damages for timber taken therefrom. The petition has the formal statutory allegations of trespass to try title, and in addition thereto alleges and sets out deeds to a common source of title under which both the plaintiffs and defendant assert title to the lands in controversy, and further alleges .that the only claim defendant...
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This suit was brought, by appellee to recover upon a benefit certificate for $1,000 issued by the appellant, a fraternal mutual benefit association, on the life of Julius Hansen, her deceased husband. In answer to plaintiff's suit the defendant pleaded that the contract of insurance was void because of false statements, representations, and warranties made by the insured in his application for ins...
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This suit was brought by appellee against the appellant to recover damages alleged to have been caused by the negligence of appellant in transmitting a telegraphic message sent by appellee from Galveston to Walter Scott at Ft. Worth, Tex. The telegram was as follows: "Galveston, Texas, March 20, 1912. Walter Scott, Fort Worth, Texas. Please wire me money immediately. My wife has just died. Answer....
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As originally instituted, this was an action in trespass to try title by Ellen Craigen and Odelia Carouthers, joined by her husband, against R.S. Jackson to recover an undivided one-eighth interest in a certain 666 acres of land out of the W. H. Smith league in Jefferson county. After the institution of the suit, Elodie Le Blanc and several others intervened, setting up claim, according to the fac...
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This is an appeal from an order of the district judge, in vacation, dissolving, in part, a temporary injunction theretofore ordered by him. On the hearing of the motion to dissolve the judge found that all of the allegations of the plaintiff's petition were true. The petition was sworn to, and in defendants' answer, on which is based their motion to dissolve, and which is not sworn to, there is on...
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Article 1614, Revised Statutes 1911, provides: "When any cause or suit may be taken up from any inferior court to the Court of Civil Appeals, whether by appeal, writ of error, or otherwise, it shall be lawful for the attorney for both plaintiff and defendant to file in the papers of said suit or cause written or printed briefs, or argument, if written not to exceed fifteen pages," etc. Rule 37 (14...
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This suit was brought by appellant against appellees S. M. Rosamond and S. S. Day, composing the firm of Rosamond Day. The purpose of the suit was to recover damages for the loss of timber upon lands leased the defendants by plaintiff under a contract by the terms of which defendants, upon the payment of the consideration named in said contract, were granted the right to extract the turpentine an...
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Callie Childress and her husband, G. D. Childress, instituted this action in the district court, against J. F. Robinson, joining in the action A. R. Anderson, sheriff of Harris county. Plaintiffs seek, under the ordinary allegations of an action of trespass to try title, to recover of defendant Robinson the title and possession of an undivided three-fourths of a certain tract of land, described in...
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Appellant, plaintiff in the court below, after alleging in his petition *Page 84
that on March 19, 1912, he was lawfully engaged in the retail grocery business at No. 208 East Main street in the city of Nacogdoches, further alleged as follows: "That on or about said 19th day of March, 1912, while he [appellant] was quietly and peaceably pursuing his lawful occupation, defendant [said city of Naco...
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T. H. Vernon brought this suit against the St. Louis, Brownsville Mexico Railway Company, a corporation operating a railroad, to recover damages for personal injuries sustained by him while in the employment of defendant as locomotive engineer on account of a collision of the freight train he was engaged in operating with another freight train standing on defendant's main track at or near its stat...
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This was an action of trespass to try title brought by the appellees against appellant to recover an undivided one-half interest in a tract of land described by metes and bounds in the petition. Appellant answered by denial and plea of not guilty. In a trial to a jury there was a verdict and judgment for appellees for an undivided onehalf of 160 acres out of the land described in the petition. The...
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This suit was brought by appellee against the appellant to recover damages for the alleged negligent failure of appellant to make delivery of a telegram received by it for transmission and delivery to appellee informing him of the death of his brother. The damages claimed are for mental anguish caused by the inability of appellee to attend his brother's funeral, which it is alleged resulted from t...
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W. T. Stewart brought this suit against the Kirby Lumber Company, J. R. Chapman, and D. G. Mann to recover damages in the sum of $2,473.20, for timber alleged to have been cut and removed from a certain 24 1/2-acre tract of land in Tyler county, and for the alleged injury and destruction of other timber on said tract, and for alleged injury to the land itself through the hauling and dragging of lo...
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This suit was for debt and foreclosure of lien upon personal property. It comes to this court without statement of facts, conclusions of fact by the trial court, or bills of exceptions, and no motion for new trial was made in the lower court. We find no fundamental errors apparent upon the record, and the judgment is affirmed. ...
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This is a suit for damages instituted by defendant in error, which, it was alleged, accrued by reason of the discharge of defendant in error without cause by plaintiff in error. Defendant in error claimed to have been employed by plaintiff in error on or about July 1, 1911, for 12 months at the rate of $100 a month and house rent and fuel valued at $25 a month; that he was discharged without cause...
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This is a suit for the value of a horse, alleged by appellee to- have been killed, at a private crossing by a train, through the negligence of appellant. The allegation of negligence was that “the crossing at the time of the injuries hereinafter complained of was improperly, negligently, and carelessly constructed and maintained, and did not permit of the free and easy passage of cattle, horses, ...
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This case was tried without the intervention of a jury in the trial court. The suit was brought by appellee, J. E. Geitzenauer, against G. W. Willingham and his wife, Ora Willingham, to rescind a contract whereby appellee had sold and conveyed to *Page 377
appellant lot 3, block 41, Glenwood addition to the city of Amarillo, or in the alternative for damages. The trial court, without filing concl...
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This suit was instituted by appellee against appellant to recover damages for personal injuries alleged to have been received on February 12, 1911, while a passenger on one of appellant's trains, on account of the panel coming loose between two windows in the coach in which appellee was riding, falling against him, and injuring his head, hand, and foot. The trial resulted in a verdict for plaintif...
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Appellee sued appellant to recover damages for the burning of certain household goods, kitchen furniture, and wearing apparel, which were located in a house *Page 380
near appellant's railroad track, and which were ignited by sparks of fire escaping from appellant's engines, which destroyed said goods. The general issue was pleaded by appellant. A trial resulted in a judgment in favor of appellee...
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Page 998
Appellee sued appellant for $500 for damages alleged to have been inflicted upon an automatic musical instrument known as a violin pianola while being transported by appellant from San Antonio to Dallas in this state, and upon trial before jury recovered verdict followed by judgment for $225, from which this appeal is taken. The verdict and judgment are sustained by the evidence, and for that reas...
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This suit was brought by appellee to recover of appellant damages for personal injuries caused by the negligence of appellant's employés. The petition, in effect, alleged that appellee was in the employ of appellant as a switchman in appellant's freight yards west of Denison, known as Ray Switch; the switch crew was composed of a foreman, another switchman, and appellee; that an assistant yardmast...
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Defendant in error sued plaintiff in error upon a policy of insurance by which plaintiff in error agreed to pay defendant in error $750 in the event of the death of defendant in error's horse described in said policy and alleged the death of the horse and the compliance by defendant in error with all provisions of the policy. In answer to the suit plaintiff in error, in addition to general demurre...
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At the last term of the court the defendant in error, John F. Robinson, within 90 days after acceptance of service by his attorney of record of the citation in error, filed a complete transcript of the proceedings in the cause, with a request and motion to affirm on certificate. The 90 days not having expired, we overruled the motion to affirm on certificate, as prematurely filed, and at this ter...
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Suit by appellee against appellant to recover damages for personal injuries in the loss of a leg through the alleged negligence of appellant. The petition alleged, in substance, that on the 17th of September, 1912, while in Waco, Tex., he became intoxicated to such an extent that he was rendered mentally and physically incapable of protecting himself from danger, or of appreciating his danger, or ...
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Page 1003
Buck Sams, the father of Robert Andrew Sams, a minor child, sought to recover the custody of said minor by writ of habeas corpus from appellees, Bob Mitchell and E. A. Mitchell, the maternal grandparents, and, upon hearing before the court, the temporary custody of the infant was awarded to the maternal grandparents Mitchell.
The first contention of appellant is that the district court in a habeas...
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This suit was filed by the appellee, John W. Campfield, against John J. Ellerd, the appellant, to recover in the trial court on two vendor's lien notes amounting to $1,150 each; also, for the usual attorney's fees and foreclosure of the vendor's lien upon the land and for which the notes were partly given. The appellant, Ellerd, admitted the execution of the notes in question, but specifically all...
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J. P. Cunniff sued the Texas & New Orleans Railroad Company in the justice court, to recover $150, the value of a mare alleged to have been killed by one of defendant’s trains. On trial in the justice court he recovered judgment for $100. Defendant appealed, and in the county court plaintiff recovered a like judgment, from which this appeal is prosecuted.
A gang of men were engaged in putt...
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This was a suit -by J. E. Sullivan, appellee, against William Ris-' inger, appellant, for a mule. It was alleged that on November 1, 1912, appellee was in possession of the mule, and that upon that day appellant wrongfully took it from him, and refused to surrender it to him. Appellant claimed the mule as his own. The evidence was voluminous and conflicting. The jury might have found in favor of ...
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The action was brought by appellee against the appellants in trespass to try title to the land described in the petition. Appellants pleaded not guilty, and answered, claiming the land as the separate property of Polly Treadwell, wife of Horace Treadwell, and acquired by the ten-year statute of limitation. In a trial to the court judgment was entered for the appellee. In the trial of the case it w...
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The appellant, the Barteldes Seed Company, brought suit in the county court of Donley county, against the appellee, Bennett-Sims Mill
Elevator Company, for damages on an alleged breach of contract for the sum of $434, in refusing to deliver 35,000 pounds of German millet seed, in accordance with the terms theretofore entered into between the parties on April 19, 1912. The appellee denied liabilit...
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This is an action for damages in the county court by T. M. Scanlan against the Bland Fisher Lumber Company. Upon trial with a jury the plaintiff recovered judgment, and defendant appeals.
Appellee sued upon a contract in writing for the sale of 150,000 feet of lumber, more or less, by himself to appellant, 100,000 feet of certain dimensions at $11 per thousand feet, and 50,000 feet of certain dim...
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This suit was brought by appellee against the appellant and one Will Allen to recover the sum of $117.50, the value of professional services and medicines rendered and furnished by appellee, a physician, to the wife of said Allen, who is the daughter of appellant. At the time of filing the suit in the justice court, the plaintiff procured the issuance of an attachment against the property of both ...
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F. M. Martin brought this suit against appellant to recover damages, alleging, in substance, that on the 7th day of December, 1912, he was in the employ of appellant in the capacity of brakeman and working on one of its trains then being operated between Corsicana, in Navarro county, Tex., and Hillsboro, in Hill county, Tex.; that when this train reached a point near the station of Mertens, in Hil...
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This is an appeal from an order of the district judge of the Ninth judicial district, made in vacation, appointing a receiver for the city of Dayton, in Liberty county. The appointment was made on the petition of Mark M. Carter, the appellee, who alleged in substance that the city of Dayton had been duly incorporated on the 17th day of April, 1911, under chapter 11, tit. 18, Revised Statutes of Te...
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The appellee sued the appellant to recover damages, both actual and exemplary, resulting from certain alleged libelous publications made by the appellant concerning the appellee, during the race of the latter for the state Senate in 1910. We here copy from appellant’s brief the substance of the allegations of the petition:
“Plaintiff alleged that he was a practicing attorney residing at Beaumont; ...
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The suit was commenced in a justice court by appellant as plaintiff. He sought a judgment against appellee Zack Currey for the sum of $137 as the value of one-fourth of crops grown by said Currey as *Page 417
his tenant on land described in his complaint Currey and appellee Cleveland, who, it seems, voluntarily made himself a party defendant, answered, denying they were appellant's tenants. A tri...
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On the case made by the facts recited, the court told the jury there were three ways in which the existence of a marriage might be established: "First," he said, "by proof of a ceremonial marriage under the laws of the state in which such marriage is contracted; second, by family history; third, by proof that the parties lived together as husband and wife and held themselves out as such and were r...
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Lee Johnson had charge of the operation of appellee’s planing mill near Nacogdoches. Appellant was Johnson’s “helper.” In his petition appellant alleged it was his duty, as such helper, to assist Johnson in the work of keeping the several planing machines adjusted and repaired. January 24, 1912, while appellant was at *422 tempting, with a wrench, to adjust one of said machines, as a result of ...
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This is an action of trespass to try title, instituted by D. E. Griswold and others against Mrs. C. C. Comer, the Old River Rice & Irrigation Company, J. T. Bayliss, Joseph Raper, and Osear J. Petty, to recover a certain 320 acres of land, the east half of a section patented to the heirs of Elias Griswold. The plaintiffs also claimed damages by way of rents for two years preceding the institution ...
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The first assignment predicates error on the part of the court in overruling the special demurrer of limitation to the petition. According to the allegations in the petition, Lamar county ousted appellee from the actual possession of the land on August 1, 1911, after the decision and judgment of the Supreme Court on May 24, 1911, in the appeal of the cause of Lamar county against appellee, which f...
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This is a suit in trespass to try title, by Charlotte Campbell and others against Mrs. Sallie Gibbs and others, to recover four leagues of land lying in Madison and Walker counties. The land sued for is in two' tracts, one being all of a certain grant of four leagues in the name of Gordiano Badil-Ta, lying west of the Trinity river, and the other two-league grant in the name of Badil-la. Some of t...
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The statement of the allegations in plaintiff's petition by appellants is adopted by us, as the appellee concedes that it is substantially correct. The statement of exceptions and pleas of defendants will not be made, as we think our opinion will otherwise disclose the issues made thereby:
"This suit was filed in the district court of Hemphill county, on the 20th day of December, 1912, by T. M. Cu...
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Page 1026
In this case A. W. Hahn sued N. A. Baker in the district court of Colorado county on a promissory note for $1,300, payable to P. Hahn, administrator, and alleged to have been by him transferred to plaintiff. The original petition was filed October, 16, 1909. Defendant, Baker, is alleged to be a resident of Cook county, Ill. On July 19, 1910, the plaintiff made affidavit and executed bond as requir...
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Appellee was struck and injured by one of appellant's locomotives attached to a passenger train at a point in Terrell, Tex., where the appellant's railroad crosses Moore avenue. Suit was instituted in the court below, the complaint alleging such injuries to be the result of the negligence of appellant in: (1) Failing to sound the whistle and ring the bell for the crossing; (2) moving the train at ...
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The’ appellant, Mrs. Annie Stamp, a feme sole, sued the Eastern Railway Company of New Mexico in the district court of Potter county, Tex., alleging in substance that she was a passenger upon *451appellee’s line of railway, traveling from a point in New Mexico to a point in Texas, and while at a station of the appellee, and upon a part of the platform of said station intended for passengers, she f...
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Alice Gutheridge, formerly the wife of R. W. Gutheridge, of Green county, Okl., instituted this suit against R. W. Guth-eridge (her divorced husband), C. B. Boverie, and J. M. Poff, residents of Texas, for the cancellation of certain deeds and title to the N. E. % of section No. 28, block No. 15, H. & G. N. Ry. Co. survey in Collingsworth county, Tex. The allegations of the petition, in substance,...
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Mollie C. Benedetti sued David Fahey, J. L. Boddeker, and J. E. Boddeker, the last two being partners under the firm name of J. L. Boddeker Co., alleging that about March, 1912, Fahey purchased from her a lot in the city of Galveston; that she delivered the deed to J. L. Boddeker Co. to be delivered to Fahey, which was done, and Fahey, as consideration for said deed, executed and delivered to Bo...
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On October 25, 1913, we rendered a decision in this ease, reversing and remanding it. Appellee has filed a motion for rehearing and called to our attention errors that we are now persuaded we committed in our- former opinion, in applying the law to the facts of the case; we therefore grant the motion for rehearing and file this opinion as our conclusion ■ of the law governing the ease. We may be p...
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The appellees, Geo. F Walck and wife, Ellen Walck, sued the Western Union Telegraph Company for injuries alleged to have been sustained by the wife at Des Moines, N.M., on account of falling over a guy wire attached to one of *Page 903
appellant's telegraph poles and a "stob" in a public road or street, while traveling from her home at night to said town. The result of the fall, on account of pre...
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This is a suit in trespass to try title, instituted by appellee Wallis against Mrs. C. Bonin and her husband, T. R. Bonin. Masterson Irrigation Company, Geo. D. Childress, H. Yoakum, H. J. Miller, W. G. Richbourg, K. C. Barkley, J. F. McQueen, Thos. B. Mitchell, R. B. Cheshire, *Page 908
administrator, H. Masterson, Ingham S. Roberts, D. H. Hardy, the firm of Hardy Roberts, W. L. Thompson, and W...
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R. T. Owens instituted this suit by original petition and application for injunction against the sheriff of Foard County, Tex., and the J. M. Radford Grocery Company, a corporation with its principal *Page 912
place of business in Taylor county, Tex., to restrain the sale, under execution, of Owens' partnership interest in the partnership property of Owens Beaty, a firm composed of D. P. Beaty a...
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The appellee in 1912 was the owner of a 63-acre tract of land, over the south end of which ran a 60-foot public road, leading from Rockdale to Thorndale, in said county, which had been previously condemned by the county for a public road. The International Great Northern Railway Company's right of way ran immediately south of said public road and parallel therewith. The north line of the right of...
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Frank S. Walters filed this suit against T. J. Freeman, receiver, and afterwards, the receivership having terminated, the International
Great Northern Railway Company, the purchaser of the properties at the receiver's sale, was made a party to the suit.
Plaintiff alleged that on September 16, 1909, he was in the employ of Freeman, receiver, as an inspector and car repairer It his yards at Spring;...
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Appellant sued appellees for the value of certain personal property alleged to have been converted by appellees and upon which appellant, at the time of such conversion, had a mortgage lien properly registered to secure an indebtedness due him. The appellees in effect urged as a defense to the suit that they used proper diligence to ascertain the existence of the lien and failed to do so, and henc...
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The plaintiff in error, Percy Crandall, sued in the county court of Potter county, Tex., the defendants in error, C. R. Scott, W. G. Underwood, and J. W. McQueen, on 10 promissory notes, executed by the defendants in error, in favor of the plaintiff in error, and which were a part of and based upon the following contract:
"State of Texas, County of Potter. This memorandum of an agreement this day ...
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The Continental Lumber Tie Company sued P. H. Miller upon an itemized verified account to recover the sum of $656.14 due for two cars of lumber sold and delivered by plaintiff to the defendant and in the alternative to recover the reasonable market value of such lumber. The defendant denied under oath the account sued on and pleaded specially that the shipment of lumber was not of the character, ...
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G. E. Dennington brought this suit in the justice court of precinct No. 1, Haskell county, against H. H. Edwards, Hailstorm Underwriters, and L. G. Ocheltree, charging that they had fraudulently obtained from him a certain promissory note dated May 6, 1912, for the sum of $65.40 as a premium for a policy of hailstorm insurance, agreeing that the policy should be guaranteed by a certain company, wh...
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J. M. Popplewell, Jr., instituted a suit against the Record Company, a corporation publishing a daily newspaper in Ft. Worth, to recover the sum of $400 damages for wrongfully having deprived him of a paper route in the city of Ft. Worth, and the suit was consolidated with one instituted by the Record Company against Popplewell in the justice court and appealed to the county court to recover $125 ...
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In a suit by Schow Bros against the Young Men's Christian Association of Dallas, a private corporation, plaintiffs recovered a judgment, from which the defendant has appealed.
The suit originated in the Justice court, *Page 932
later appealed to the county court, and was upon a verified account for merchandise charged to the defendant. The merchandise shown in the account consisted of groceries f...
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This appeal is from a judgment in appellees' favor for the sum of $12,500 as damages for personal injuries alleged to have been received by Mrs. Davis while she was a passenger on one of appellant's trains on the 16th day of January, 1909. A number of assignments of error relating to the rulings of the court on the instruction and rejection of evidence and to special charges given and refused have...
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G. H. and J. A. Shawver instituted this suit against Henry Coody to recover possession of three mules and one horse, or, in the alternative, the value thereof, also for $250, the value of two mules alleged to have been converted by the defendant; title to all of said stock being claimed by the plaintiffs. Judgment was recovered by plaintiffs, and the defendant has appealed.
The animals in controve...
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J. W. Ambrose and Guy Ambrose rented land from Mrs. Jerome Gil-lispie, who instituted this suit against them to recover several items claimed to be due for rents and for the use of farming implements and mules. But the suit was dismissed as to the defendant Guy Ambrose. J. W. Ambrose, in addition to a general denial, filed a plea in reconvention in which he sought to recover for certain labor per...
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Page 1050
This suit was instituted by W. T. Ivy against H.R. Pugh, J. W. Light, and J. M. Hart, alleging that the defendant Hart had wrongfully converted to his own use certain cotton upon which plaintiff as landlord held a valid lien as against Pugh and Light, his tenants. Hart pleaded that he took the cotton under a mortgage lien which was prior in law to plaintiff's lien. The honorable county judge befor...
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This is a garnishment suit wherein Burns Bell, judgment creditors of C. C. Lowe, sought to hold City National Bank as garnishee; the fund in controversy being a deposit of $408.36 in the name of Mrs. Belle Lowe and the sum of $10 in the name of Ruel Lowe. The bank answered, disclosing these deposits, but alleging that the one was the separate property of said Belle Lowe and the other the individu...
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The defendant in error, Mrs. W. Pauline Baugh, brought this suit in trespass to try title against plaintiffs in error, Mrs. Bridget Zimmermann, Florence, and Minnie Zimmermann, the land in controversy being a small triangular piece out of what is designated as the north part of lot 7 in block 18, New City block 525, in the city of San Antonio, Bexar county, Tex., and is more fully described by met...
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This suit was filed in the county court of Dallas county, July 14, 1910, by appellee lumber company, praying recovery upon three notes in the sum of $100 each, dated October 1, 1907, and payable February 1, 1908, October 1, 1908, and February 1, 1909, respectively, bearing interest at 8 per cent. per annum from date, and stipulating for the usual 10 per cent. attorney's fees. Appellants, Mida Cleg...
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This suit was instituted by H. O. Wooten Grocer Company, a corporation, against R. D. Smith, his wife, T. E. Smith, and R. G. Patton and F. G. Alexander, trustees in certain deeds of trust, to recover against the defendant R. D. Smith as maker of two promissory notes and against him and his wife for a foreclosure. The action was dismissed as to the trustees, and as to the other defendants resulted...
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G. B. Howell has appealed from an order made by the judge of the district court in chambers, granting a temporary writ of injunction, which restrained the defendant from constructing certain improvements of a building owned by him, and also from using the same as a place to conduct a livery business.
The suit was instituted by the City of Sweetwater, and the building is situated in the City of Swe...
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This is an appeal from a judgment of the district court of Montague county enjoining the execution of a judgment of the justice court of precinct No. 1, Collin county, in favor of appellant and against the McCall Hardware Company, doing business in Montague county, and against the Collin County Grain Company for the sum of $77.18.
The ground of attack is that there has never been any service of ci...
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In the trial court judgment was rendered in favor of Puckett & Wear, plaintiffs, against • O. S. Lattimore, A. J. Lawrence, and J. E. Cummings, defendants, upon a promissory note executed by the defendants in plaintiffs’ favor, and the defendants have appealed.
The consideration for the note was plaintiffs’ contract to construct a dam of concrete across a ravine, which dam was designed by ...
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Whitsitt Guerry instituted this suit against C. F. Pugh for debt and foreclosure of a mortgage lien in plaintiffs' favor on certain cotton raised by the defendant during the year 1912. Plaintiffs alleged that the Farmers' Bank of Peaster had a prior mortgage on said cotton, and also on two mules, one wagon, and a cow, to secure a debt owing to it by Pugh, and the bank was made a defendant. Upon t...
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The appellant railway company brought suit against L. O. Floyd, the appellee, and D. W. Thomas and S. F. Biggers, in a justice court in Gray county, to recover $165.58 freight charges on three cars of watermelons alleged to have been shipped by said parties over appellant's line of road from McLean, Tex., to Ft. Worth, Tex. A default judgment was rendered against Biggers and Thomas, and a judgment...
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Appellee instituted this suit, alleging, in substance, that in March, 1912, he conveyed to the First State Bank of Paradise certain merchandise and other property of the aggregate value of $2,160.30, in consideration for which said bank, acting through its agent, L. W. Clarke, agreed to *Page 958
pay specified debts due wholesale creditors of plaintiff, aggregating $1,638.79. It was alleged that,...
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This suit was instituted by the appellee, J. D. McCutchan, against appellant, Everett Landers, to recover the title and possession of lots Nos. 16 and 17, block 143 of -North Ft. Worth, Tarrant county. Both parties claimed under O. D. Lan-ders as common source of title. Appellee claimed title by virtue of a sheriff’s deed dated August 6, 1912, made by virtue of an order of sale, issued upon a jud...
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This suit was instituted by appellee to recover damages alleged to have been sustained by him from personal injuries inflicted through the negligence of appellant. It was alleged that appellee was crossing appellant's railroad, in an automobile, in San Antonio, at a public crossing on Woodlawn avenue, a much used highway, *Page 962
and that appellant failed to give any signals of the approach of ...
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On May 21, 1913, appellant submitted to Hon. W. C. Douglas, judge of the Sixty-Third judicial district, her petition, under oath, praying that upon final hearing an order of the commissioners' court of Kinney county, establishing a road across a section of land owned by her, be vacated and annulled, and that a temporary injunction issue restraining Jos. Veltmann, county judge of Kinney county, Han...
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The appellant company instituted this suit against appellee, and as the basis of recovery sought presented a petition, which, omitting formal parts, reads as follows: “That heretofore, to wit, on or about September 19, 1911, Hugh Martin, a contractor and builder, was engaged in the erection and construction in Sweetwater, Texas, of a home building for the defendant herein under a contract, the ...
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Chas. Gamer sued C. A. New-berg to recover $299.20 upon a verified account for certain plumbing materials sold and delivered by the plaintiff to the defendant. The defendant answered, pleading a counterclaim of $163 according to an itemized’ account for labor and material furnished to plaintiff in making certain plumbing repairs. The defendant admitted the correctness of plaintiff’s account, exce...
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Mrs. W. C. Black, the surviving widow of W. C. Black, who died on about the 1st of June, 1912, brought this suit against the Texas Pacific Railway Company to recover damages for alleged personal injuries received by the deceased, and, from *Page 1078
a judgment sustaining a general demurrer to her petition and dismissing her cause of action, has appealed.
It is unnecessary for us to state the ch...
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This is the second appeal in this case, the disposition of the former appeal being reported in 152 S.W. 233. In a suit other than the present R. G. Bennett, W. A. Bennett, A. Power, and E. D. Power sued Chas. W. Abbott, and J. S. Foster upon three promissory notes executed by them, and also procured the issuance of an attachment upon an affidavit that Chas. W. Abbott was insolvent, and that J. S. ...
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Appellee instituted this suit to recover damages for personal injuries, and secured a verdict and judgment for $5,000, which upon a hearing of the motion for a new trial was reduced by remittitur to $3,000.
Every step in the proceeding seems to have been skillfully and vigorously contested in behalf of appellant, but, after a careful consideration of the record, we have failed to find an error for...
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The appellee sued appellant in the court below for $200, alleged to be the value of a horse, wagon, and harness destroyed by appellant in a collision in the town of Terrell at the intersection of appellant's road and Moore avenue, a public highway, between appellant's train and appellee's wagon while being driven by John Wiggins. The grounds of negligence alleged by appellee, the defenses urged by...
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On November 15, 1910, C. L. Neese recovered a judgment by default in the justice's court against the Southwestern Land Corporation for $135, although there was an answer on file. On December 16, 1912, the defendant filed a motion alleging that the justice of the peace who had rendered the judgment, but was no longer in office, had, during the term at which the judgment was rendered, set the same a...
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This suit was instituted in the county court of Kendall county by the San Antonio, Fredericksburg Northern Railroad Company, defendants in error, against Alice Balch and E. J. Beall, plaintiffs in error, to condemn a strip of land for right of way for the railway company over the land of plaintiffs in error in that county. Commissioners were appointed as provided by law and made their award, to w...
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In an able motion for rehearing filed by counsel for appellee, it is very earnestly insisted that this court erred in the opinion heretofore filed herein in holding that the charge given the jury by the trial court was erroneous in the respects stated in said opinion. We adhere to our conclusion that the charge was incorrect; but we agree with counsel that the errors in the charge pointed out i...
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This is an action of trespass to try title brought by W. O. Foote and George Locke, who will be hereinafter styled appellees, against the Masterson Irrigation Company, H. Masterson, J. O. Ross, and Ellen B. Ross, said J. O. Ross and Ellen B. Ross being sued individually and as executors of the will of J. H. Burnett, deceased, to recover a tract of 137 acres of land, a part of the W. P. Harris leag...
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Appellant brought this suit in trespass to try title against appellee for 369 acres of land in Madison county, patented to Samuel Bogart, assignee of John W. Holman, on February 14, 1852, by virtue of certificate 347. Appellee relied alone on the plea of the five-year statute of limitation, which was sustained, and judgment entered for him for the land, from which this appeal is taken.
The case be...
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Statement of the Case.
This suit was originally instituted by Mrs. Lula B. McComb, individually and as survivor of the community estate of herself and deceased husband, W. P. McComb, against John C. Williams and the Huntsville State Bank, in trespass to try title to 984 acres of land out of the Lemuel Smith two-thirds league survey in said *Page 655
county, described by...
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W. H. Stephens, as assignee of the Drought Co. notes and mortgage, brought this suit against E. E. McClain and all subsequent purchasers under him, seeking a recovery upon the notes and a foreclosure of the mortgage lien. Some of the defendants did not answer; others did, but it is not necessary to state anything more concerning the pleadings, except to say that the answer of Mrs. Powell, who alo...
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Findings of Fact.
On or about May 20, 1899, the Legislature of Texas passed an appropriation bill, which among other things provided for the erection of a new Infirmary at the State Lunatic Asylum, and appropriated therefor the sum of $10,000, and also provided for the erection of a building to be used as an associate dining hall and kitchen, storeroom, amusement hall,...
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As appellant's statement of the nature and result of the suit is concurred in by appellee, the same will be adopted, and is as follows: This suit was instituted by the state of Texas against appellant to recover penalties aggregating $400,000, on account of 80 alleged violations of passenger circular No. 18, issued by the Railroad Commission of Texas, relating to the running of passenger trains on...
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On the 3d of September, 1912, plaintiff, through his agent, purchased from appellees 100 bales of cotton, to be delivered to him on the 20th of said month at Elgin, Tex., agreeing to pay therefor the sum of 10% cents per pound, based upon the current price of middling cotton at Elgin on said date. Notwithstanding appellant held himself in readiness and was able and willing at all times to pay for ...
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In 1911 appellant, claiming to be a creditor, filed an application in the county court seeking to have the will of Jos. A. Solomon, deceased, probated and administration opened upon his estate. That court refused to probate the will, and the matter was carried by appeal to the district court, where judgment was again rendered refusing to probate the will, and an appeal has been prosecuted to this ...
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Appellee brought this suit in the justice’s court for salary, expenses, and commission alleged to be due him upon the following agreement with appellant: “Memorandum of agreement made this 15th day of May, 1911, by and between the Iowa Manufacturing Company of Des Moines, Iowa, and J. M. Taylor of Commerce, Texas. The Iowa Manufacturing Company agrees to hire the said J. M. Taylor and he agrees t...
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On tlie 25th of October, 1910, appellee Ideus shipped 120 head of cattle from liano to Ft. Worth over the Houston & Texas Central and Gulf, Colorado & Santa Eg Railways to market. He alleges that, on account of delay and rough handling, said cattle were damaged in loss of weight and shrinkage and marketable appearance, and, on account of the delay, were sold on a lower market than they would ha...
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This suit was brought to recover damages for personal injuries alleged to have been sustained by appellee while in the employ of appellant, resulting from a collision between appellant’s freight train, and a hand car upon which he was engaged at work, charging various acts of negligence which brought about the collision. Defendant, after interposing a general demurrer and a general denial, answere...
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The appellees sued the appellant in the „county coprt of Panola county to recover an indebtedness of $536.92, the value of two car loads of lumber which it is alleged they sold to the appellant. Appellant answered by a general denial, and also reconvened for damages in the sum of $990.30, claimed as the result of the breach of a contract by the appellees. The evidence showed that in June, 1906, t...
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This was a suit by appellee against J. W. Beckwith, a resident of El Paso county, and J. E. Bishop and J. E. Ervine, residents of Harris county, brought in the county of the residence of the defendant Beckwith. Plaintiff in his petition averred that prior to and during April, 1910, the El Paso Grain Company was a corporation; that the three defendants owned all of the stock of said corporation and...
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This suit was brought by appellants, who are residents and taxpayers of road precinct No. 1 of Anderson county, against appellee, who is tax collector for said county, to restrain the collection of a tax of 17 cents on the $100 valuation of property in said precinct, levied by the commissioners' court of said county to create a sinking fund and pay the interest on a proposed issue of road bonds fo...
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(after stating the facts as above). We overrule appellants' contention, and hold that no error was committed in refusing to grant the application for a continuance. In Hogan v. M., K. T. Ry. Co.,88 Tex. 679, 32 S.W. 1035, a case somewhat similar to this, the rules relating to the question of diligence are discussed; and we refer to that case and the dissenting opinion in the Court of Civil Appeal...
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On October 17, 1910, the city of Houston, operating under a special charter, adopted an ordinance with regard to plumbing in said city, the material portions of which are as follows: "No person shall do any job of plumbing or drain laying or make any connection with, or opening into, any public sewer, or lay any drain or do any plumbing, although regularly examined and licensed by the examining an...
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This is a personal injury suit in which the plaintiff laid his damages at $30,500. The substance of the pleadings of the respective parties is set out as follows in appellant’s brief: The plaintiff alleged: “That on the 15th day of November, 1910, he was a passenger on one of defendant’s passenger trains traveling from Temple, Tex., to Georgetown, Tex. That on the occasion of the arrival of the tr...
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E. E. Wayman, on or about July 10, 1911, was in the employment of William Miller & Sons Company, a corporation, which was constructing a nine or ten story building in the city of Houston known as the “Southern Pacific Building.” While so engaged at work upon said building, Wayman was, on the date mentioned, killed by being struck by a large bucket used for hoisting concrete and other building mate...
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(after stating the facts as above). We agree with the trial court that the contract as written was unambiguous, so far as it related to the removal of the mill to the Mattox land. The language used by the parties, to wit, “the said Brown contemplates moving his said mill * * * and is to give hauling of saw timber at the new mill site to the said Newsome upon the following terms,” etc., plainly di...
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This is an appeal from a judgment of the district court in favor of appellee and against appellant for $1,995 as damages for the negligent failure of appellant to deliver promptly a telegraphic message sent by the wife of appellee at Groveton, Tex., to appellee at Milvid, Tex., in the following words: "Baby is a good deal worse. Don't expect he will live through the night" The message was received...
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D. M. Harvey and his wife, Annie Harvey, brought this suit against P. M. Morrow and his wife for the purpose of obtaining a judgment establishing the plaintiffs' right to the custody, care, and control of Elma Stewart, a child five years of age. The defendants filed an answer contesting the rights asserted by plaintiffs. There was a nonjury trial, which resulted in a judgment for the plaintiffs, a...
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In a suit brought by appellant against F. C. Starr, plaintiff sued out a writ of garnishment against appellee, the city of Beaumont. The answer of the garnishee to said writ, which was properly verified, was as follows: "Now comes the city of Beaumont, garnishee, in the above-entitled and numbered cause, and for answer herein to the writ of garnishment served on it says: That, at the time the said...
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This is an appeal from an order of the district court, dissolving a temporary injunction theretofore granted. The case comes to this court with an assignment of errors and brief by appellees. The transcript contains the pleadings on the case, and is accompanied by certain original and certified copies of deeds introduced on the hearing by the parties, sent up with the record by agreement. The o...
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This is an action by plaintiff in error, John L. Jones, to recover damages from the defendant in error, Missouri, Kansas Texas Railway Company of Texas, for his alleged wrongful expulsion as a passenger from one of defendant's passenger trains. Plaintiff alleged that on January 29, 1911, he purchased at St. Louis at reduced tourist rates, from defendant's connecting line, it being duly authorized...
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Claiming that his horse was struck and killed by the appellant's locomotive, at a place where the railway company was not excused from fencing its track, the appellee brought the suit for damages. The appellant by proper assignment makes the contention that a finding that the horse was struck and killed by its train is not warranted by the evidence, and that as a consequence the judgment in favor ...
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At the last term of this court this case was reversed, because it was the opinion of this court that the will set out in our former opinion prohibited both the executor and the probate court from making a sale of the land in controversy for the purpose of paying debts, or for any other purpose, until that provision of the will had been annulled or suspended by an order of the probate court. No suc...
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Conclusions.
It is insisted that the appellant company should have had an instructed verdict, on the ground that there was no testimony showing the right of appellee to maintain the suit in his own name. While appellee testified that he was engaged as a salesman for the "Wirter Press Company," and the orders constituting the basis of this suit recite that appellee w...
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On Motion for Rehearing and Motion to Dismiss Appeal.
[7] Since rendition of the judgment reforming and affirming this case in favor of appellant, appellees William D. and Nathaniel T. Blackburn have filed two motions herein, one for rehearing, and the other to dismiss the appeal. If we grant the latter motion, it necessitates, of course, the granting of the former.
The motion to dismiss is predic...
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1. On the former appeal of this case we held, in substance, the publication was privileged; that it was libelous as defined by our statute; and that the second article was admissible in evidence as tending to identify the appellee and his wife as being the parties referred to in the first article. We adhere to these holdings, which dispose of appellant's first, second, third, and sixth assignments...
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Appellee J. M. Badt, a merchant engaged in business at Mt. Pleasant, under the name of "J. M. Badt Co.," bought fertilizer of appellant, agreeing to pay it therefor sums aggregating $404.68 less cost of carriage thereof from Shreveport, La., to Mt. Pleasant, Tex. The suit was by appellant to recover $114.58 as the part of the purchase price unpaid by appellee. The appeal is from a judgment denyin...
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1. Appellees object to the consideration of appellants' assignments of error for the reason that they do not comply with rule 25 (142 S.W. xii), in that they do not refer to that portion of appellants' motion for a new trial wherein the error assigned is complained of. This objection must be sustained. Said assignments do not refer to the motion for a new trial.
2. Appellants insist that fundament...
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Appellant is the father of the appellee, and instituted this suit for the purpose of canceling a deed which some years before he had executed and delivered to his son, conveying 36 acres of land. The petition alleges that the appellant was old and infirm and unable to attend to his business affairs; that the appellee represented to him that he wanted a deed of gift to 10 acres of land lying off t...
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The appellee sued the appellants in the justice court of precinct No. 1 of Smith county, claiming a balance of $175.92 alleged to be due on an open account. The items forming the account are made up principally of freight charges prepaid on machinery sold and delivered to the appellants by the appellee. The testimony shows that in March, 1911, the appellants purchased from the appellee a steam boi...
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H. G. York, as the next friend of Tom Moore, a minor, filed this suit in the court below, for recovery of damages resulting from personal injuries received by the minor while employed in a box factory owned and operated by the appellants. It is alleged, in substance, that Tom Moore was employed and put to work about dangerous machinery, that he was a youth under 21 years of age, of immature judgme...
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Appellee while In the discharge of his duties as a brakeman on one of appellant's trains suffered injury to his person, as the result of a collision between that train and another one of appellant's trains, due to negligence on its part. As damages he thereby became entitled to, he recovered the judgment for $8,000 from which this appeal is prosecuted.
At the time the collision occurred, appellee ...
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The suit is in the form of trespass to try title, but its real purpose was to fix and determine, and the right of the whole case depends on, the boundary lines between the Jonathan Thorp survey of 282 acres and the Jesse Smith survey of 312 acres of land. Appellee owns the Thorp survey, and the appellants are the owners of the Smith survey, a junior location. The jury returned the following verdic...
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On October 23, 1911, the appellee resided with his family in the country near Carbondale, Ark. On the date mentioned he, in company with his wife and other parties, attended a circus in Texarkana. The train on which they returned arrived, at Carbondale some time after dark. There is a sharp conflict in the testimony as to whether the train stopped at Carbondale or not; some of the witnesses testif...
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Appellant's brief contains the following statement of the nature and result of the suit:
"This suit was instituted by appellee, W. D. Hunter, against appellant, J. T. Hill, in the district court of Travis county, Tex., on the 4th day of January, 1912, for the possession of 1,572 acres of land situated in Travis county, and the said W. D. Hunter on said day sequestered said property, and later, wit...
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Page 1121
By the first assignment it is contended that the judgment in the instant proceeding is contrary to the law and evidence, for that the judgment of the district court of Coal county, Okla., awarding the custody of the child to appellant is res adjudicata of such custody, and such judgment should be given full faith and credit by the courts of Texas. It is settled, and not doubted, that an order of t...
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Appellants (wife and husband) were the plaintiffs in the court below. Their suit was against appellee, and as commenced by them was to try the title to 200 acres of a tract of 422 acres of land in Morris county known as the "Lilley Survey" and also known as the "Beard Survey." The petition contained only the allegations usually made by the plaintiff in a suit of trespass to try title. In the petit...
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This is an action in trespass to try title, filed August 3, 1911, by appellee against H. S. Groesbeck, administrator of the estate of William Swain Hadley, deceased, to recover lot 1, block 41, city of San Antonio; the petition, in addition to the usual allegations, containing the averment that said administrator had procured an order from the county court authorizing him to sell said lot as a por...
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This was an action by the Byrd Irrigation Company, a corporation, to condemn a tract of land in Uvalde county belonging to J. G. Smyth, appellee, for the purpose of constructing dams, reservoirs, and canals to be used for irrigation purposes under the powers conferred upon it by its charter under chapter 2, title 60, of the Revised Statutes. A commission was appointed by the county court, in accor...
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This is a suit instituted by appellee against appellant to recover certain parts of surveys 39, 46, and 51, in block 6, International
Great Northern Railway Company lands, in Dimmit county. Appellant, in addition to his plea of not guilty, pleaded an agreement as to the boundary line between his lands and those of appellee, whereby the land sued for was acknowledged to be appellant's land. In a s...
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On the 21st day of July, 1906, plaintiff, J. H. Drummond, filed suit against Steve J. Lewis and D. McNeill Turner in trespass to try title; on March 18, 1912, D. McNeill Turner disclaimed; on October 14, 1912, on the first day of the court, in the absence of plaintiff and plaintiff's counsel, a judgment was given defendant by default; thereafter, during the same term of the court, on October 23, 1...
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This was an action by the appellee against the San Antonio
Aransas Pass Railway Company, the Gulf, Colorado Santa Fé Railway Company, and the Atchison, Topeka Santa Fé Railway Company to recover damages arising from the failure upon the part of the defendants to transport a car load of vegetables from Gregory, Tex., to Minneapolis, Minn. In his original petition, filed September 28, 1909, appel...
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This is a suit instituted by appellee against appellants, in the justice's court, to recover $165, alleged to be due on an oral contract for the cancellation of a contract for the sale of a tract of 10 acres of land and the return of purchase money paid by appellee to appellants. Appellee obtained a judgment for the amount sued for, and the cause was appealed by appellants to the county court, whe...
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The Austin Fire Insurance Company appeals from an adverse judgment in favor of Henry Sayles and others as trustees for the Colorado Salt Company, a corporation, upon a fire insurance policy for the sum of $2,000. Upon the trial the court instructed the jury to find for the plaintiff, unless they should find for the defendant under the following instruction: “You are charged that if you believe ...
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W. N. Turney recovered a judgment of $2,500 as damages for personal injuries received while in the employ of the appellant company as a switchman. He alleged that while in the discharge of his duty and while attempting to set a brake upon a specific car that the "brake chain or eyebolt of the chain broke through some defect not known to him, causing him to fall from, the top of the car to the grou...
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This action was brought by E. P. Bomar against William Reeves and others to cancel a certain deed of conveyance, and to recover a tract of land in Cooke county, Tex. The allegation was made that the conveyance had been executed in consideration that William Reeves and others whom he represented would cause to be dismissed a proceeding previously instituted by them against Bomar to have him declare...
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This is an action by Pat Whitten against G. P. Whitten to recover a sum of money, $1,900 of which was alleged to be secured as follows: The sum of $800 by a chattel mortgage on a certain bay stallion and the residue of said amount by a mortgage lien on ten acres of land in Tarrant county. The defendant, among other defenses, alleged that the suit was prematurely brought. The trial resulted in a ju...
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Appellee instituted this suit in the county court against the appellant (the Texas Pacific Railway Company) and the Ft. Worth Belt Railway Company to recover damages to a car load of cattle shipped from Cisco, Tex., to Ft. Worth, in January, 1912. He alleged negligent delay, rough treatment en route, and decline in market value. Upon the trial the court gave a peremptory instruction in favor of t...
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We think appellant's general demurrer must be overruled. In Byrd v. Ellis, 35 S.W. 1070, and Low, Adm'r, v. Felton, 84 Tex. 378, 19 S.W. 693, it is held, in effect, under the circumstances alleged by the appellee in his petition, that appellant, as the heir of his mother and as having received her estate in excess of the amount of the claim sued upon, would be personally liable. If so, it is quite...
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This suit was brought by Crowder and Flanagan against the Texas
Pacific Railway Company and connecting roads, in the county court of Martin County, Tex., alleging as cause of action that they delivered to the Missouri, Kansas Texas Railway Company, at Itasca, Tex., 40 mules to be transported to Stanton, in Martin county, by and through the connecting carriers; that by reason of rough handling th...
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This is an ordinary action for damages to a shipment of cattle made by J. E. Drahn and Edgar Kerr over the lines of the Texas New Orleans Railroad Company and the Texas Pacific Railway Company, the former handling the shipment from Beaumont to Dallas and the latter from Dallas to Ft. Worth. There was a verdict and judgment in favor of the plaintiff against the initial carrier for $270.80 and aga...
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This was a suit by appellee Mrs. Eula Farmer joined by her husband, R. A. Farmer, to enjoin a sale under and to cancel a certain deed of trust executed by appellees on May 16, 1911, to secure a note in favor of appellant bank in the sum of $662.50. The trust deed conveyed lots 1, 2 and 3 in block No. 4, in the town of Paducah, in Cottle county. Appellees allege in their petition that at the date o...
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Suit was filed by defendant in error, L. F. Price, against the Devine Realty Company, a partnership, composed of C. M. Thompson, W. L. Dubose, A. M. Patterson, R. C. Howard, and Lizzie C. Adams. The cause of action was alleged thus: Defendant in error made a contract with the firm whereby he should be paid one-half of the commissions received by the firm for the sale of certain lands, by it or ...
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Appellant filed this suit in the district court of Collingsworth county against appellee Buerger, as the maker of one promissory note and thirteen vendors' lien notes, and joined as defendant Martha Mooney, as indorser of the vendors' lien notes. It is alleged that the said notes were given for part of the purchase price of certain town lots in Wellington, upon which there was a house to which the...
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The issues presented by this appeal are the same as those presented in the case of Wells v. Globe Fire Ins. Co. et al., 157 S.W. 289, and decided April 26, 1913, and for the reasons stated in the opinion filed in that case the judgment in this case is reversed and the cause remanded....
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This suit was instituted by the First National Bank of Merkel against Coke W. Harkrider upon a promissory note executed by the defendant in favor of the plaintiff for the sum of $3,173.81 dated December 30, 1909. By a verified answer the defendant admitted the execution of the note, but alleged that he executed to plaintiff a note dated August 28, 1905, for $3,500, of which $2,500 was solely for a...
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Charles Clarke, doing business in the name of Charles Clarke Co., appellee, brought this suit against the Mannheim Insurance Company, appellant, on a marine insurance policy, to recover damages occasioned by the sinking of the steam tug Seminole while moored to the steamboat Alarm, while alleged to be "in the gulf waters of the United States between Key West, Fla., and the mouth of the Rio Grande...
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E. Moseley filed suit in the district court of Haskell county complaining of Mayes, Leslie, Helton, Beasly, Grisham, Stanfield, Walker, Allen, and R. W. Warren; the action being as to all of the defendants, except Warren, one of trespass to try title and essentially a boundary suit, and as to Warren one to recover upon his warranty as a vendor of the land in the event the other defendants had Jud...
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J. E. Chandler sued W. T. Maxwell, William Dillard, R. A. Crockett, J. A. Slaton, and S. S. Arnold, as makers upon a promissory note of the sum of $1,100, joining therein as defendants Harrison Feagan, Gid Howington, and Ed Howington, who it was alleged were asserting some sort of interest in certain personal property upon which W. T. Maxwell had executed a chattel mortgage to secure the note. Arn...
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This suit was brought by D. E. Whitaker to cancel a deed of trust executed by J. A. Roberts to A. P. Martin, trustee, for the use and benefit of various defendants, covering sections 21, 22, 23, and 24 in block 13, state free school land, situate in El Paso county, Tex. Upon trial before the court judgment was rendered in favor of plaintiff.
There is no statement of facts in the record, and it is ...
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This suit was instituted by the appellants, plaintiffs in the court below, in the district court of Cottle county, against D. H. Goodwin, J. J. Randall and wife, L. M. Richards, administrator of the estate of *Page 426
E. T. Goodwin, deceased, J. W. Goodwin, B. F. Kirby, J. L. Tullis, Pearl Montgomery, W. L. Montgomery, Clinton Goodwin, and Hilburn Goodwin, to establish a deed alleged to have bee...
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Appellees sued in the court below, alleging that appellant had employed them to sell a house and lot in the city of Dallas and agreed to pay them certain commissions in the event they found a purchaser for the property, and that through their efforts the property was sold. Appellant answered the suit by general demurrer and general denial. Trial by jury resulted in verdict for appellees, followed ...
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The appellant appeals from an order of the Honorable J. N. Browning, Judge of the Forty-Seventh judicial district of Texas, granting a temporary injunction against appellant, the Clarendon Waterworks Company, at the suit of appellee, the city of Clarendon. The fiat of the judge is indorsed on the petition of appellee, April 24, 1913, and the same was filed on that day with the clerk of the distric...
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Action of trespass to try title by Conoway against Morrow, involving 640 acres of land situate in Upton county known and described as section 5 in block N, patented to Thomas Roche, assignee of the Houston East
West Texas Railway Company, by virtue of certificate 100/503.
This is the second appeal of this case, former opinion appearing in 147 S.W. at page 344.
The cause was tried before the court...
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This suit was brought by appellee in the justice's court against St. Louis Southwestern Railway Company of Texas and appellant, to recover damages alleged to have been sustained to a car load of cattle shipped by him from Mt. Calm, via Waco, to Ft. Worth; the grounds of negligence alleged being delay and rough handling en route, whereby he sustained loss, as claimed. A trial in the justice's cour...
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This is a suit on three promissory notes, each for $90, due, respectively, on May 1, June 1, and July 1, 1911, instituted by appellee, the payee therein, against appellant, the maker of the notes. The notes were executed in connection with a written lease contract for certain premises in Brownsville, in which the property was leased by appellee to appellant, and appellant sought to evade payment o...
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Appellant instituted this suit in the court below against appellees to recover $250, alleging that in March, 1912, he purchased from appellees a half interest in a bowling alley and certain equipments and fixtures situated in Corsicana, paying therefor $250 cash and for which appellees claimed to have paid $425; that at the time he purchased same appellees claimed title thereto free of liens or in...
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On appeal from a justice court, appellees recovered a judgment against appellants for the sum of $150.90; this sum being the amount overpaid by them upon a draft with bill of lading attached showing a shipment of 61,890 pounds of corn from Rentisville, Okla., via the Missouri, Kansas, Texas Railway Company to Wichita Falls, Tex., and from Wichita Falls over the Wichita Falls Southern Railway to N...
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Appellee recovered a judgment in the district court of Jones county for the sum of $950 against J. J. Bozeman, city marshal of Hamlin, and against L. N. Riter and J. M. Terrell, the sureties upon his official bond, as damages for personal injuries inflicted by J. J. Bozeman at the time of and during an alleged unlawful arrest and detention of appellee. The said sureties Riter and Terrell alone app...
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A. Sanders and I. H. Elder instituted this suit in trespass to try title to recover a strip of land consisting of about 73 acres in Jones county. In addition to a plea of not guilty the defendants interposed pleas of limitation of five and ten years and from a judgment in their favor plaintiffs have appealed.
The suit was tried without a jury and the trial judge filed findings of fact and conclusi...
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Tripp Bros, filed suit in the justice court against McCormack upon an open account amounting to $30.19 and a promissory note in the sum of $93.67. After trial in that court, the cause upon certiorari was thereafter tried de novo in the county court, resulting in judgment for the defendant, from which this appeal is prosecuted. [1] McCormack in his answer averred that the note sued upon was ex...
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This suit was instituted by the Hood County Mill & Elevator Company against the Ft. Worth Grain & Elevator Company to recover damages for a breach of warranty of quality of a car load of wheat purchased by the plaintiff from the defendant and for which plaintiff paid the sum of ?1,'490.60. It was alleged that the wheat was warranted to be
#2
soft wheat and that it proved to be a very...
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Page 1162
This is an appeal from a judgment in favor of appellee, Pyle, against appellant for the sum of $2,641.24, with interest thereon from June 10, 1912, at the rate of 6 per cent, per annum.
On March 14, 1907, Milton Park, the appellant, sold to the Farmers’ Educational & Co-Operative Union Publishing Company, O. P. Pyle, and George B. Latham certain printing presses, etc., and received the sev...
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This suit was brought by the appellees to enjoin the appellants, who are trustees of the Mertens independent school district, from issuing bonds and levying taxes for school purposes in said district. A general and several special demurrers, urged by defendants to plaintiffs' petition, were by the trial court overruled, and by appropriate assignments of error these rulings are presented for review...
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Appellant sued E. C. Fain, Jr., and J. R. Milam in the court below upon a fidelity bond executed in favor of appellant by Fain as principal, and Milam as surety, alleging that Fain's legal residence was in Hill county, but that at the time suit was filed he was without the boundaries of the state of Texas and his whereabouts unknown, and that Milam resided in McLennan county. The bond recited that...
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W. M., C. L., and J. R. Creighton purchased from Frank Richards and Geo. T. Liles, block H in the O’Neall & Cunningham addition to the town of Mineral Wells; but by mutual mistake the deed executed by the vendors to consummate the sale described the property conveyed as block G, which was another block in the same addition. Thereafter the parties entered into a contract in writing which, after ...
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By a written contract H. Brodkey agreed to purchase from M. A. Lesser certain real estate and to pay therefor the sum of $3,800. Brodkey having refused to comply with the contract, Lesser first sued him for a specific performance of the contract, but later dismissed the suit, sold the property for $3,100, and then instituted this suit to recover of Brodkey the difference between the sum so realize...
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This suit was filed in the district court of Parmer county, by appellant, to recover upon an overdraft charged against appellee by the Bank of Bovina. Writs of attachment were issued by appellant, the first being levied on 125 head of cattle, and an alias writ levied upon an undivided interest, alleged to have been held by appellee in a certain herd of cattle. After the writs were levied the cattl...
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This suit was brought by appellee against appellant to enjoin him from conducting a livery stable so near his residence as to constitute a nuisance, and for actual damages for impairment in value thereof, for temporary discomfort, and for exemplary damages. Appellant pleaded general denial. A trial before the court without a jury resulted in a judgment in favor of appellee, awarding him $75 damage...
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This is a suit for $505.27, instituted by appellee, alleged to be due for a safe and freight and storage. The suit was brought against Shaenfield Bros. & Co., composed of Abe Shaenfield, Sam Shaenfield, and Dave Shaenfield. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee for $455.60. The suit was based on an order made by appellants on appellee, for a certai...
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This is a consolidation of two suits, originally brought in the district court of Haskell county; the first being an action of trespass to try title by J. J. Sweet et al. against W. P. Whitman et al., and the second being an action by A. A. Aldrich et al. against W. P. Whitman et al. for a partition of the same land, being a 1,280-acre survey patented to Isaac Parker as assignee of Richard Finch o...
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The following statement of the case is taken from appellees' brief:
"On September 5, 1911, the appellee, Guaranty State Bank Trust Company, brought this suit against John C. Underwood and M. Murphy and the city of Dallas. The suit was on a note of said Underwood for $4,500, and said note was indorsed by the defendant Murphy; that said note was in part a renewal of an original note for $2,000 of t...
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This was an action for damages resulting from personal injuries sustained by appellee while in the service of the appellant as an electric lineman. From *Page 749
a judgment in his favor, this appeal is prosecuted.
Rule 25 for the government of the Courts of Civil Appeals (142 S.W. xii) expressly provides that assignments of error "must refer to thatportion of the motion for a new trial in which ...
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This was an action by the appellee against the Imperial Irrigation Company and others for damages arising from trespasses by said company upon lands owned by the appellee. Upon trial before a jury, verdict was returned, and judgment thereon rendered in favor of the appellee against the Imperial Irrigation Company for the sum of $2,000.
Rule 25 for the government of the Courts of Civil Appeals (142...
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This was a suit by Delaney against Cain for commissions alleged to be due for certain services rendered. Upon trial before a jury, verdict and judgment was rendered in favor of the appellee in the sum of $290.25.
Rule 25 for the government of the Courts of Civil Appeals (142 S.W. xii) provides that an assignment of error must refer to that portion of the motion for a new trial in which the error i...
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This cause was tried by the court with a jury. Appellee in its brief objects to the consideration by this court of any of appellant's assignments of error, because the assignments as filed, which appear in the record, do not comply with rules 24 and 25 (142 S.W. xii) for the government of the Courts of Civil Appeals, as amended January 24, 1912.
The rules referred to are as follows:
"24. The assig...
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This is a suit brought by Mary Walters, temporary administratrix of the estate of F. G. Walters, deceased, to recover damages for the death of said Walters. Case was tried before jury and resulted in a verdict against defendant for the sum of $5,000.
The assignments of error in appellant's brief will not be considered by us because not in compliance with rule 25 for Courts of Civil Appeals (142 S....
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This is an appeal from the county court of Martin county. The cause was tried by the court and jury. The verdict and judgment was in favor of appellee, and appellant filed a motion for new trial.
We find from examination of appellant's assignments of error, as filed in the trial court, that no mention or reference is made to the motion for new trial. This is not a compliance with the rules which g...
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This case is here upon writ of error from the district court of the Seventy-Third judicial district, and this is the second time the case has been to this court. For former opinion, see 127 S.W. 1156. The record reveals that the case was tried at the October Term, 1911, and final judgment entered as of November 13, 1911. On November 11, 1912, a petition for writ of error was filed, and on November...
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Appellee on the 28th of June, 1910, was the owner of an imported German coach stallion, called Rigi, and took out a policy of insurance upon his life for a period of 12 months from said date in appellant company for the sum of $1,200, paying the required premium therefor. On the 4th of August next thereafter said horse died. Proof of loss having been made in accordance with the provisions of said ...
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The appellee, on the 9th day of October, 1909, issued a policy upon the life of Frederick William Grell, husband of appellant, for her benefit, in the sum of $1,000. The premium was paid for the first year, and within said year the insured committed suicide. The trial court rendered judgment for appellee. [1] The following is written in the face of the policy: “The mutual agreements, benefits...
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Appellee Finney instituted this suit against appellant for the custody of his minor son, Harry Boyett Finney, alleged to be unlawfully withheld by the appellant, Mrs. Lilla Walker. The case was called for trial, a jury impaneled, and the evidence heard, at the conclusion of which a peremptory instruction was given by the court, directing a verdict in favor of the appellee. The child in controversy...
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D. F. Taylor, appellee, brought this suit to recover of appellant the sum of $500 on an oral contract to insure certain household goods, furniture, wearing apparel, printed books, pictures, paintings and jewelry of the alleged value of $850, made by plaintiff and R. T. Malone, the general agent of appellant in the city of Dallas, Tex. The petition alleged, in substance, so far as necessary to stat...
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Appellee filed this suit in the district court of Collingsworth county for damages, based upon adulterous relations between appellant and appellee's wife. The record shows that appellee and wife were married in 1883; that they cohabited and lived happily together until about two years before the filing of this suit; that as a result of their marital relations they became the parents of eight child...
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This was an action for damages by the appellee, based upon personal injuries alleged to have been sustained by his wife. It was averred that Mrs. Mebus was a passenger upon one of the street cars of the appellant, and upon alighting from said car at the intersection of Cotton avenue and Detroit street, in the city of El Paso, she was injured through the negligence of appellant. Upon trial verdict ...
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On February 15, 1906, D. K. Furnish, appellant, applied to John J. Terrell, Commissioner of the General Land Office, to purchase, as additional land to his private land, section 8, certificate 2/274, grantee, J. Poitevent, 640 acres, in Kinney county, Tex. This application was filed in the General Land Office on February 20, 1906, and said section of land was awarded to D. K. Furnish by the Land C...
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It is clear from the record that plaintiff sued for only $100 and waived the provision, for attorney’s fees; therefore the appeal is dismissed for want of jurisdiction. ...
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Appellee instituted suit In the court below against James F. Acker, E. E. Rosenberry, W. G. Ashley, and appellant Housman, alleging that on January 20, 1911, appellee conveyed certain lands in Collin county, Tex., to said Acker for a recited consideration, part of which was represented by the three promissory negotiable notes of Acker, payable to appellee and secured in their payment by the vendor...
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Mrs. Humphries, joined pro forma by her husband, brought this suit against appellant and the Texas Pacific Railway Company to recover damages for having been unlawfully ejected from the train of the former on the 29th of October, 1909, alleging that she and her mother purchased tickets at Higginson, Ark., on the 27th of October, via Ft. Worth, Tex., over the I. G. N. Railroad to Waco; that appel...
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This is a companion case to M., K. T. Ry. Co. of Texas v. Mrs. Marian Humphries, the daughter of appellee, in which this court handed down an opinion at its last sitting. 157 S.W. 1174. For the reasons set forth in said opinion, the judgment of the trial court in this case is affirmed.
Affirmed....
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Chambers was the owner of eight sections of state free school land situate in El Paso county and conveyed same to Josephine R. Grisham, wife of M. A. Gris-ham, in consideration of certain premises situate in Martin and Howard counties being conveyed to him by said M. A. Grisham. The deed from Chambers to Mrs. Grisham was filed in the General Land Office, together with substitute obligations of he...
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This is an appeal from a judgment for $1,200 in the appellee's favor for personal injuries received in the derailment of a passenger car upon which appellee was a passenger on the 17th day of September, 1911. Appellee alleged that the servants of the defendant railway company were negligent in the manner in which they were running the train at the time of the derailment and negligent in that it pe...
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[1] This is a suit by the ap-pellee on the certificate of insurance issued by the appellant to his wife, in which he is named as the beneficiary. Appellant is a mutual benefit association doing business in this state through grand and subordinate lodges in the usual manner common to such organizations. The pivotal question involved in this appeal is: Was the deceased in good standing at the tim...
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This suit was to recover money deposited upon an escrow contract. Appellant sold certain land to appel-lee, the title to which was clouded by liens. Appellee required appellant to obtain three releases in closing the transaction. An agreement was made that appellant should deposit with the Uvalde National Bank $500 as a guarantee of the faithful performance of his agreement to obtain the releases...
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This suit was brought by Alice Rice and Annie Hamm against appellant to set aside a sale of a certain parcel of land situated in the city of Dallas, Tex., under execution issued against Alice Rice on a judgment rendered in favor of appellant for $43.80, interest and costs aggregating about $52. On a hearing of the case the court below rendered judgment in favor of the appellees for the land and in...
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This is a motion to set aside a judgment of affirmance rendered by this court on March 19, 1910, in cause No. 6,034, appealed from the Fourteenth judicial district court of Dallas county, styled Herman Kruegel v. Murphy Bolanz et al. In said case in the court below Kruegel filed an application for a mandamus to require H. H. Williams, district clerk, to issue an execution on a judgment rendered by...
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This is an appeal from a judgment sustaining a general demurrer urged against a motion to retax costs made by appellant in the above-styled case. On the original trial of said case upon its merits judgment was rendered against P. H. Archer, appellant herein, and in favor of F. P. Cole, for all costs of suit, and an execution awarded in favor of the officer of court for the costs. No amount was spe...
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E. G. Taylor filed suit against E. L. Taylor, and citation was issued commanding him "to be and appear before the honorable district court of El Paso county, Tex., thirty-fourth judicial district, at the next regular term thereof, to be holden at the courthouse in the city of El Paso, on the 2d Monday in September, A.D. 1912, same being the 2d day of September, A.D. 1912." The term of said court c...
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Appellee accompanied his niece and her two small children to the station at Mt. Selman, so that they might take appellant's regular passenger train to Tyler. It was dark when the train was due and arrived. Appellee boarded the train with his niece and her two children – one an infant – for the purpose only of assisting and providing them with seats. According to the testimony of appellee, he state...
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This suit was originally instituted in the justice court by appellee against appellant to recover $175 damages to plaintiff's horse occasioned by his becoming entangled in some wire which it is alleged was negligently placed and allowed to remain in the public road by defendant's servants. It was alleged that while riding along said road at night plaintiff's horse became entangled in the wire, and...
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This is a suit for divorce instituted by appellee against his wife, the appellant, on the ground of excesses, cruel treatment, and outrages of such a nature as to render their living together insupportable. A trial by jury resulted in a verdict and judgment dissolving the bonds of matrimony.
The first assignment of error complains of the action of the court in overruling an application for continu...
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This is a suit on a promissory note brought by W. H. McCracken, alleged to have been a bona fide purchaser, against T. H. Ragland, and I. H. Moore, and to which appellant Ragland answered, pleading a general demurrer and a general denial, and pleading further a failure of consideration, and praying that the appellee, Guarantee Life Insurance Company, be made a party in the cause, and that in the e...
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On March 15, 1912, appellee's warehouse, together with the contents of same, was destroyed by fire. Claiming that its property was set on fire through sparks and fire negligently emitted and ejected from an engine of appellant being there operated at the time, the appellee sued for the loss. Appellant answered by denial, and pleaded that appellee was negligent in permitting combustible materials t...
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The Commercial Jewelry Company sued the appellee on a written contract whereby the latter bound himself to pay to the jewelry company the sum of $360 as the price of a list of goods consisting of a showcase, some cut glass, and jewelry. The appellee answered, admitting the execution of the contract sued on and the shipment of the goods according to its terms, but set up as a defense a transaction...
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Appellant recovered a judgment against Mrs. Gwaltney for $199 in the justice court. The judgment appears to be by default. It is a proven fact in the record that Mrs. Gwaltney was actually served with citation, and further actually knew that a judgment was entered against her at the time. In due time after the rendition of the judgment execution was issued, and it was levied upon certain real esta...
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Appellant sued on an oral contract entered into between him and an agent of appellee whereby, in consideration of certain payments each month for six months, he was to have the right to borrow $5,000 from appellee, that the agent was informed by appellant that he owed money on certain property in San Antonio which would become due and payable in six months, that he desired to borrow money to pay ...
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The appellant pleaded that the note sued on was executed on an agreement to loan Bertha Hulme $400 — the agreement made by J. M. Clayton — and at that time he executed or gave his check for that amount, which was protested and never paid, and therefore the consideration of the note had failed. Appellant’s testimony is sufficient, if believed by the jury, to substantiate his plea. On the contrary,...
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We adopt the findings of fact found by the trial court, with the additional finding that the appellant sought to fix a materialman’s lien by filing with the county clerk of Cottle county its account, sworn to under the statute authorizing a lien by ma-terialmen. The evidence, however, is insufficient to establish that the material itemized K «^account was furnished by appellant to Mrs. M. J. Wood...
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This case originated in a justice of the peace court, but was finally tried in the county court. It was a suit for damages for the breach of a lease contract. There was a verdict and judgment for ’the plaintiff for $63.-50, and the defendant has appealed. The first and last assignments of error complain of certain paragraphs of the court’s charge, but the objections urged are untenable. The learn...
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Appellee Florence delivered to the Marshall East Texas Railway Company, the other appellee, a car load of lumber to be carried by said railway company over its line of road from Rhonesboro to East Winnsboro, and by appellant over its line of road from East Winnsboro to Como. The shipment was covered by a through bill of lading issued by the Marshall East Texas Railway Company. In accordance with ...
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This is a suit against the railway company to recover damages juries to a shipment of horses from Kansas City, Mo., to Greenville, Tex., wherein a judgment was rendered for plaintiff against the St. Louis
&
San Francisco Railroad Company. The contract of shipment between plaintiffs and said railroad company sued on was in parol, and made by the agent of the railroad company, who was ...
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Appellee sued appellant for $1,000 alleged to be due on a certificate of insurance issued by appellant. It was alleged that appellant "is a fraternal and beneficial association duly licensed to do business in the state of Texas and incorporated under and by virtue of the laws of the state of Nebraska, and has complied with the laws of the state of Texas in appointing the Commissioner of Insurance ...
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Orange county, appellee, on December 20, 1910, brought this suit against the appellant, Cow Bayou Canal Company, alleging that appellant was a corporation duly chartered under the provisions of title 60, c. 2, arts. 3115 to 3131, Revised Statutes 1895, to engage in the construction and operation of irrigation canals in Orange county, and that it had constructed such canals, one of which intersects...
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Charles E. Bryant, having an unsatisfied judgment against A. B. Pickett, sued out a writ of execution, and placed the same in the hands of M. F. Hammond, sheriff of Harris county, who at once levied the same upon Pickett's automobile. Pickett, alleging that he was a married man and the head of a family, and that he owned no carriage or vehicle other than the automobile in question, and that he use...
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This case was set for submission on May 28th. Appellant filed his briefs in this court on May 24th, and on the same day filed a copy in the trial court, and had the attorneys for appellee served with notice of such filing. Appellee has filed a motion to dismiss the appeal on the ground that by reason of the failure to file briefs in time he has been prevented from properly making his defense in th...
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This action was brought by appellant, Turner, to have deeds declared null and void, and to remove cloud from his alleged title to the parcel of land described in his petition. Before trial the case as to all of the defendants, except Vivian Knuckles, was dismissed. Vivian Knuckles is a minor, and Tom Ball, Esqr., was appointed guardian ad litem to represent her, and answered by a general demurrer...
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This case was tried before the court without a jury. No motion for a new trial was filed in the lower court, nor were separate findings of fact and conclusions of law filed by the trial court.
Rules 24 and 25 for the government of the Courts of Civil Appeals (142 S.W. xii), as amended January 24, 1912, read:
"24. The assignment of error must distinctly specify the grounds of error relied on and di...
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Hattie O. Cooney filed suit against John B. Dandridge and Spencer B. Pugh, appellees, to recover upon four promissory notes executed by the appellees, one of the notes payable to order of Amelia Wolcott, two payable to order of Myra Wolcott, and one payable to order of Nellie Byrud, alleging that she was the legal owner and holder of the notes. Appellees in their answer to the merits averred that ...
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C. C. Abee sued J. A. Clopton and W. C. Holland on a note for $500, executed by Clopton to Holland, alleging that Clopton was insolvent, and that said note was delivered to him in part payment for certain lots sold by him to Holland, praying for judgment against both defendants and for foreclosure of vendor's lien upon said lots. By trial amendment he alleged that Holland agreed to sell and transf...
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On May 26, 1887, J. T. Smith executed a note for $2,500 payable to E. W. Taylor on November 1st thereafter. In order to secure that note, he gave a deed of trust on certain real estate described as being situated in Marion and Cass counties. W. T. Armistead was named as trustee. The deed of trust contained the usual stipulations common to such instruments, authorizing the lands to be sold in defau...
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John C. Garvin and S. M. Garvin sued W. H. Coleman in the district court upon two promissory notes for $233.50 each and to foreclose the vendor's lien on certain lands, for the purchase money of which, it is alleged, the notes were executed. A trial without a jury resulted in a judgment for plaintiffs against defendant for the amount due on the notes, together with attorney's fees and foreclosure ...
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Page 1225
The issues on this appeal grow out of the following facts: Appellee sued C. E. Welch in the county court of Dallas county at law November 4, 1911, to recover an automobile or its value, alleging ownership in himself and a conversion of the car by Welch. Simultaneously with the filing of suit upon application of appellee, a writ of sequestration was issued, by authority of which the sheriff of Dall...
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S. A. Lilly and several other resident citizens of the city of Houston Heights presented to the district court of Harris county their petition praying that a temporary writ of injunction be issued restraining the defendant the city of Houston Heights, its agents and representatives, from enforcing two ordinances passed by the city council of said city, one of which prohibited the running at large ...
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Defendant in error sued plaintiff in error in justice court of precinct No. 1 of Brooks county upon a verified account showing a balance due of $162.07. Plaintiff in error interposed a plea of privilege, which was overruled, and judgment entered in favor of defendant in error. After appeal to the county court defendant in error, on May 20, 1912, again presented his plea of privilege, which was aga...
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This case originated in the justice court, where appellees sued appellant railway company for $160.01 damages for loss of goods destroyed by fire while in appellant's depot at Brownsville, Tex. Judgment in the justice and county court was for plaintiffs, and the railway company appeals. The case comes here upon an agreed statement of facts, which is adopted here and is as follows: "On July 18, 191...
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This is an action of trespass to try title brought by appellee against the appellants, John Dupont, G. Stewts, Joe Stewts, Will Stewts, David R. O'Fiel, John O'Fiel, and Orella Dupont, to recover a tract of 42 1/10 acres of land, a part of section 121, Texas New Orleans Railway survey in Jefferson county. The defendants John Dupont, G. Stewts, and John O'Fiel filed disclaimers. The other defendan...
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Appellee instituted this suit to recover damages which he alleged accrued through injuries negligently inflicted on his person by appellant. Appellant answered by general denial and special plea of contributory negligence on the part of appellee. A trial by jury resulted in a verdict and judgment for appellee in the sum of $9,000.
The facts show that while appellee was walking in a path near the m...
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This is a suit by appellants to recover damages against appellee for the death of their son, who was killed by coming in contact with a live electric wire belonging to appellee, which was down on a street known as Rike avenue, in the town of Farmersville,
Tex.'
The negligence charged in plaintiffs’ peti-. tion was in effect: First. Permitting an electric light wire charged with ele...
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Defendant in error Camp sought to recover on the following contract, viz.: "Dallas, Texas, July 12, 1906. Received of Thomas L. Camp the sum of $200.00 in part payment for 50 × 100 feet, the southwest corner of Main and Dove streets, part of block 171, according to Murphy
Bolanz's official map of the city of Dallas, Texas, this day sold by us as agents of the estate of B. O'Connor to the said Cam...
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S. S. Ashe, plaintiff, brought this suit against the Houston Belt Terminal Railway Company, the Trinity Brazos Valley Railway Company, the Gulf, Colorado Santa Fé Railway Company, the Beaumont, Sour Lake Western Railway Company, the St. Louis, Brownsville Mexico Railway Company, and the Chicago, Rock Island Gulf Railway Company, defendants, to recover damages for depreciation in value of certa...
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This is an action of trespass to try title by the appellee for recovery of four sections of free school land in Presidio county, filed May 28, 1912. The premises were sold and awarded by the Commissioner of the General Land Office to Moses Jiner, as an actual settler, on December 8, 1906. By deed dated December 30, 1907, Jiner conveyed the same to Salvador Chavira. The conveyance was duly recorded...
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Appellee sued appellant on June 18, 1910, to recover attorney's fees, claiming that he was entitled to $3,000 for legal services under an express oral contract, approved orally by the county judge, by virtue of which contract he was to receive such amount for one year's services, payment to be made in installments of $250 at the end of each month, and further claiming $2,250 on a quantum meruit fo...
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This suit was brought by the appellant against the appellee to recover the sum of $144, the purchase price of goods sold and shipped by appellant on the written order of appellee. The trial in the justice court, in which the suit originated, resulted in a judgment in favor of the defendant, and upon appeal and trial de novo
*217
in tlie county court a like judgment was rendered.
...
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The appellant brought the suit against appellees in trespass to try title to the east one-third of the J. H. Knapp headright survey in Fannin county. The plaintiff specially pleaded his title. The several appellees, who were defendants, answered by denial, not guilty, statutes of limitation of three, five, and ten years, purchasers for value, and improvements in good faith. Judgment was entered on...
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This suit was instituted by the plaintiff in error, W. E. Kelly, who will hereinafter be referred to as plaintiff, against the defendant in error, hereinafter called defendant, to recover damages for personal injuries alleged to have been inflicted upon his wife, Mrs. S. B. Kelly, through the negligence of the defendant's servants. It is alleged, in substance, that on the 3d day of August, 1909, w...
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This is an injunction suit brought in the district court of Hill county by appellee against appellant, as Comptroller of the state of Texas, and John E. McKenzie, as tax collector of Hill county, seeking to restrain the defendants from doing certain things as will be shown hereafter. Appellant answered by motion to abate for lack of jurisdiction in the district court, to adjudicate the matter as t...
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The appellee sued the appellant in the court below, alleging in substance that appellant had subscribed to a given amount of the capital stock of appellee, and had paid the subscription in part and refused to pay the balance. Judgment against the appellant was asked for such unpaid balance. Appellant, so far as the issues raised on this appeal are concerned, answered by general demurrer and genera...
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Appellee, John Broughton, independent executor of the estate of James P. Douglas, deceased, filed this suit in the district court of Pecos county in trespass to try title to a section of land described in the petition against J. H. Nations and Mary L. Purington. Nations entered his disclaimer. Appellant filed her answer, containing general demurrer, plea of not guilty, and plead the three, five, a...
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By its first assignment the plaintiff in error makes the contention that the failure on the part of the insured to take an inventory of the stock of merchandise within 30 days after the date of the policy worked a forfeiture of the policy, and a verdict should have been directed in favor of plaintiff in error. It was an admitted fact in the trial that an inventory of the stock of merchandise was n...
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This suit was brought by appellee against the appellant to rescind the sale of an automobile purchased by him from appellant, and to recover the money paid by him for said automobile, and in the alternative to recover, for alleged breach of warranties made by appellant in the sale of said automobile, the difference between the amount paid by appellee and the value of the automobile, which differen...
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This is an action in trespass to try title instituted by J. C. Beebe et al. against Hallie B. Sweeney et al. to recover a tract of about 120 acres of land out of the Wm. Scott league in Harris county. The suit, in fact, is to settle a boundary between two parts of said league, being that part set apart to Sarah P. Williams and that set apart to George W. Scott, two of the four children and heirs a...
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A report of the action of this court on the first appeal of this case will be found in 147 S.W. 364, 365. The judgment for $2,500 in favor of appellee, from which relief was then sought, was reversed because of an error in the charge of the trial court to the jury. The testimony on the trial resulting in the judgment for $3,500 in favor of appellee, from which this appeal is prosecuted, does not a...
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Georgia O. Pearce and her husband, Lawson W. Pearce, sued Julius Heyman, Joe Heyman, California Bradford and husband, Buell Bradford, Mrs. H. B. Palmer, Ethel, Essie, and Anson Palmer, minors, Mrs. Florentine Palmer, H. B. Palmer, Burton Palmer, and J. B. Harrison, in trespass to try title to recover 1,215.7 acres of land, damages, and rents. In addition to the usual allegations, it was alleged th...
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On motion for further rehearing. Motion overruled.
For former opinion and rehearing, see 150 S.W. 1188.
This case has had a rather tumultuous career in this court. The history thereof is as follows: On May 20, 1912, the judgment of the trial court was in all things affirmed. The opinion of the court will be found in 150 S.W. 1190. Appellant, on June 4, 1912, filed a motion for rehearing, which was...
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By the first and second assignments of error appellant makes the contention that under the evidence he was entitled to have judgment for the land sued for, and the court erred in directing a verdict against him. The facts are undisputed, and the rights of the parties are made to depend purely upon a matter of law. All the parties claim through and under the conveyance from W. F. Yates and wife to ...
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This is an action in the form of trespass to try title brought by Joe Gotoskey against the defendant in error, H. Grawunder, to recover the title and possession of a tract of 25 acres of land, a part of the W. C. White league in Austin county. In addition to the usual allegations in trespass to try title, the petition alleges that the east line of plaintiff's land is the west line of a tract owned...
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On March 3, 1908, Julia Adling and others sold and conveyed lots 4, 5, and 6 in block 27, in South El Campo, Wharton county, to F. A. Nelson, reserving the vendor's lien thereon to secure the payment of several notes given by Nelson for the purchase money, one of said notes being for $300. On November 26, 1910, Julia Adling and others, having received payment of all the notes except the one for $3...
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This is a suit for partition of a tract of land containing 245 acres, situated in Harris and Montgomery counties, brought by appellants Emma Williams and Elijah Beckton, who claimed an undivided one-half interest therein, against appellees Julia Randall, William Jefferson Turner, and Jesse Turner, who, the plaintiffs alleged, were the owners of the other half undivided interest. Appellees answered...
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Appellee, A. C. Abraham, filed application in the county court of Brazoria county to be appointed administrator de bonis non of the estate of A. J. Kimmons, deceased. This application was contested by the appellants, Elmer C. Kim-mons, Maude Jackson, joined by her husband, Tom Jackson, Yirgie May Abbott, joined by her husband, George C. Abbott, Myrtle Cartee, joined by her husband, Guy W. Car-t...
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This suit was brought by appellees against appellant to recover the pecuniary loss sustained by them by the death of Earlie Hargrove, the son of appellee, Hattie Brown, who was joined in the suit by her husband, Jesse Brown, and Carrie Hargrove, the wife of the decedent.
The petition alleges, in substance, that the said Earlie Hargrove was unlawfully killed while riding as a passenger on one of ap...
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While a passenger on one of appellee's trains moving from Paris to Clarksville, where she resided, appellant's wife, Ada Baker, a negress, was assaulted and injured by one Pat Melton, a white passenger on the same train. By his suit against appellee appellant sought a recovery of damages for the injury to his wife. A trial before a jury resulted in a verdict and judgment in favor of appellee.
Appe...
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The evidence offered to sustain the claim tended to show that appellee was injured on May 30, 1909, and again on October 21, 1909, while working for Wells Fargo Express Company, handling baggage and express on appellant's train. On May 30, 1909, at Vaughn, a light engine ran against the train upon which appellee was riding with such force and violence as to knock him 20 to 30 feet, where he fell u...
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The appellee, Word, obtained judgment against appellant, the Chicago, Rock Island Gulf Railway Company, in the district court of Potter county for the sum of $918. The cause of action was based upon the burning of grass on the 22d day of February, 1909, alleged to be in appellee's pasture, containing six sections of land, where he held 500 head of cattle to winter. It is alleged, among other thin...
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Appellee has filed a motion to retax the costs in this case. By reason of the fact that the judgment was reversed and the cause remanded, the clerk of this court, in accordance with Revised Statutes, art. 2035, which is as follows: "The successful party to a suit shall recover of his adversary all the costs expended or incurred therein, except where it is or may be otherwise provided by law" – and...
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The appellee, I. A. Bundy, brought suit in the district court of Hemphill county, Tex., against the appellants, D. J. Young, Robert Moody, Thomas F. Moody, R. A. Moody, and Jim Moody, who it is alleged were a partnership and owned and operated a private banking institution, known as the Bank of Glazier; that on the 28th day of November, 1910, there was deposited to appellee's credit subject to che...
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This is an appeal by the Wichita Falls Wellington Railway Company from a judgment rendered against it in favor of the appellee, Jim Wyrick, for the sum of $700, from the county court of Collingsworth county. Appellant filed its application for commissioners before the county judge of Collingsworth county, to condemn a 100-foot strip of land out of the S.W. 1/4 of section 65, block 10, H. G. N. R...
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About February 21, 1907, Eli Howell and Chas. O. McCue, partners operating as Howell McCue in the town of Snyder, Okla., deposited with the Bank of Snyder, appellee herein, a check of E. A. Patterson for $1,000 as a special deposit. Attached to the check was an agreement, in substance, that if Howell McCue should within 30 days, or as soon thereafter as possible, obtain and deliver to the bank t...
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This was an action for damages for personal injuries. The case was in this court upon a former appeal, and in that opinion, reported in 145 S.W. 313, will be found a full statement of the case. Upon the last trial, as in the former, the plaintiff alleged but two acts of negligence: The first that the ladder, as maintained by the defendant, was unsafe, insecure, and in a dangerous condition, and th...
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Appellant, who is the county judge of Gillespie county, sued appellee for damages alleged to have accrued from the publication of the following article in the Fredericksburg Standard, a newspaper published in Fredericksburg, in Gillespie county, state of Texas:
"Ignorance or Arrogance.
"It is generally understood by the reading public when an article appears in print with...
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This is a suit of trespass to try title brought by appellant Mazilda Cotten, joined by her husband, W. F. Cotten, against the appellee, Max Friedman, to recover 100 acres of land, part of the Mary Smith survey in Hardin county. Under instructions from the court the jury returned a verdict in favor of appellee, upon which a judgment in his favor was duly entered, and from this judgment the Cottens ...
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Appellee, an architect, sued appellant to recover $2,000, alleged to be due him for plans and specifications for a house, prepared at the instance and request of appellant and accepted by him. A trial by the court resulted in a judgment for appellee in the sum of $1,881.20. The first assignment of error complains of a refusal upon the part of the court to permit him to argue his general demurre...
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Appellant instituted a suit against appellee and John W. Tobin, sheriff of Bexar county, in the county court for civil cases of Bexar county, wherein it was alleged that appellee was, prior to September 28, 1904, in the business of selling pianos and organs in Bexar county, and represented to appellant that it needed the services of an attorney in its business, and that it would employ and retain ...
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This is an action in the district court by the state of Texas against C. L. Wynne, one time constable of precinct No. 1 of Orange county, and the sureties on his bond, as constable, to recover for the use of the state, and the officers entitled thereto, certain fines and costs adjudged against parties by the justice court of said precinct amounting in the aggregate to $302.98. A trial without a ju...
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A. D. Lloyd has appealed from a judgment in favor of the American National Bank of Ft. Worth against appellant and the Ft. Worth Glass Manufacturing Company upon a promissory note, executed by Lloyd payable to the Ft. Worth Glass Manufacturing Company, and indorsed by the payee to the plaintiff bank.
In its petition plaintiff alleged the execution and delivery of the note by Lloyd to the payee, an...
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A. M. Blythe Co., a firm composed of A. M. Blythe, J. S. Woods, and Nestor Morrow, brought this suit to recover of appellant the sum of $571.50 for services as brokers alleged to have been rendered appellant in the sale of a tract of land. Appellant answered by a general demurrer, general denial, and plea of non est factum, denying that the written contract upon which appellees base their right t...
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This suit was brought by appellee against appellant. In his amended petition plaintiff alleged: "That during the month of August, 1910, the firm of Tippett-Stanley-Garner were engaged in the manufacturing business of tin, iron, and steel in the city of Beaumont; that during the month of August, 1910, one J. A. Shepard employed the firm of Tippett-Stanley-Garner to manufacture and deliver to the de...
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Appellants instituted suit in the court below against F. M. Prather, his wife, Martha A. S. Prather, and Texas Title Loan Company alleging that on October 5, 1910, they purchased from said Prather and wife a tract of land situated in Ellis county, said to contain 125 1/2 acres, and agreeing to pay therefor $75 per acre, but which in fact contained only 92.3 acres of land. Allegations of fraud and...
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This is an appeal from an order of the county judge of Chambers county, made and entered in chambers, and without notice to the defendants, granting to appel-lee a mandatory writ of injunction commanding the defendants to cease possession of certain premises described in the petition, or application for the injunction, in person or by agent or tenant, and remove from said premises, and to deliver...
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The statement of the case made by appellant is not contested by appellee, and we take it to be correct and adopt same, viz.:
"Plaintiff, E. L. Vickery, sued the defendant, Western Union Telegraph Company, alleging that he had suffered damage in the sum of $1,999.99 as the result of the failure of defendant to deliver to him a message filed at Hico, Tex., and reading as follows: `Hico, Texas, 2 – 2...
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Appellant, under the statutory remedy of trespass to try title, filed this suit to recover title and possession to lot No. 8 in block D of Cedar Grove addition to Dallas, Tex. The petition also charged that appellees were conducting both a bawdy and disorderly house as well as committing individual acts of prostitution upon the said premises in violation of the penal laws of this state, and prayed...
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W. W. Kyle instituted this action in the justice court against Lee Blanchette, to recover damages alleged to have been sustained to his automobile by reason of a collision with the automobile of the defendant at a street crossing in the city of Beaumont. Plaintiff claimed $123 as the amount expended by him for repairs of said injuries to his machine. Defendant, by way of cross-action, claimed dama...
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This is an appeal from an order of the district court dissolving a temporary writ of injunction theretofore granted upon application by appellant, which said order restrained the appellees from trespassing upon certain real estate, in that they were building a fence around the premises which appellant claimed to own and to be in actual possession of.
Inasmuch as the rights of the parties to the la...
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This is an appeal from an order of the county judge of Tyler county, made in chambers and without notice to the defendant, granting a temporary injunction on the application of the appellee enjoining and restraining defendant in that suit, appellant here, "from further fencing or trespassing on" certain lands and premises described in the petition. The record contains the petition for injunction, ...
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Appellants brought this action of trespass to try title seeking to recover 70.77 acres of land situate in El Paso county, part of four leagues of land granted to the inhabitants of the town of San Elizario by an act of the Legislature dated February 5, 1853. Sp. Laws 1853, p. 8; Gammel's Laws, p. 1362.
The facts as disclosed by the record are that, pursuant to the act mentioned, the Commissioner o...
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The Cypress Shingle Lumber Company instituted this action in the county court to recover of E. M. Pitts $975 alleged to be due and owing from defendant to plaintiff. It was alleged that defendant, one of the stockholders and former president of the *Page 800
company, while in charge of the plant from August 10th to about December 21, 1910, appropriated to his own use money, being the proceeds of...
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This is an action by S. B. Burnett against J. J. Mitchell and wife seeking a decree for specific performance of a contract to convey certain lands in Knox county. The case was submitted to a jury on special issues, and, from a judgment in favor of defendants, the plaintiff has appealed. The contract whereby appellee J. J. Mitchell bound himself to convey to appellant the lands in controversy was n...
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The assignments of error in this cause cannot be considered: First. Because they do not comply with that provision of rule 25 (142 S.W. xii), which requires that they refer to that portion of the motion for a new trial in which the error is complained of. El Paso Electric Railway Co. v. Lee (on rehearing) 157 S.W. 748, and W. U. Tel. Co. v. Hill, 159 S.W. ___,1 both cases recently decided by this ...
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This is a suit for damages arising from personal injuries alleged to have been inflicted upon appellee by appellant in negligently starting a car, with a violent jerk or lurch, from which she was about to alight Appellant pleaded contributory negligence on the part of appellee in stepping from a moving car. The cause was tried by jury, and resulted in a verdict and judgment for appellee in the sum...
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On Motion for Rehearing.
The able presentation of the view of this case adverse to that entertained by the majority of this court, set forth in the dissenting opinion of Mr. Chief Justice KEY, as also the zeal and evident sincerity with which learned counsel for appellees have presented their motion for a rehearing, constrain us to write an additional opinion herein.
Mr. ...
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Appellant assigns as error the action of the court in overruling his motion for a continuance, and also that the judgment is not supported by the evidence. There was no error in overruling the motion for a continuance. It did not state that appellant had used due diligence to obtain the testimony of the absent witnesses, nor what, if any, diligence he had used. It did not state a single fact th...
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Appellant left his automobile with appellee at their shop in San Antonio for repairs; and, according to his contention, it was understood that the charges therefor should not exceed $100. After the machine had been repaired, appellant went to San Antonio, and was allowed to take the same out in charge of a chauffeur for the purpose of testing it. They were out several hours, and returned to the ga...
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On the 24th day of December, 1908, the defendant, J. W. Ashley, represented to the plaintiff that he was the owner of four tracts of land; the first containing 116 acres, the second 101 acres, the third 47 2/3 acres, and the fourth 2 1/3 acres. These tracts were situated in different surveys located in Hunt county, Tex. The plaintiff purchased the land, relying upon the representations that the fo...
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This is a suit to recover damages by reason of alleged failure of appellee to deliver certain telegrams to appellant. A general and also several special demurrers were sustained by the court, and appellant declining to amend, the suit was dismissed.
It is alleged that appellant's father died at Sterling City on December 27, 1911, and that on that day appellant's brother Roy delivered to appellee t...
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Appellee brought this suit for damages caused by personal injuries sustained by him while riding as a passenger on appellant's road; the coach in which he was riding having been derailed and thrown from the track. It is not necessary to make any further statement as to the pleadings of either party. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $12,500, to ...
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Appell a negro, was a passenger on one of appellants' trains from Grant, Okla., to Paris, Tex. In his petition he alleged that appellants negligently took more passengers on the train than they could safely carry; that he could not get inside the coach to which he was assigned and had to stand in the vestibule of the car; that just before the train reached appellants' depot in Paris, and while the...
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In the suit of H. J. Gaupel against the Lakeside Sugar Refining Company, *Page 1039
George Herder was, by the district court of Colorado county, appointed receiver of the defendant company, and duly qualified. H. W. Raynor, holding an unsecured claim against the defendant company for $1,500 for services rendered as general manager of said company for the three months next preceding the appointmen...
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Robert Heflin and Dan Craddock were the owners of and operating for hire an automobile, which was kept in a garage on West Sixth street in the city of Austin. The Austin Street Railway Company was operating a street car line along Sixth street in front of the garage. On a certain day in January, 1912, at about 8 o'clock in the morning, Frank Anglin, who was employed by Heflin and Craddock to run t...
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On May 3, 1912, W. G. Dunn and Geo. E. Sanders made a trade, as a result of which Dunn conveyed to Sanders a tract of 510 acres of land in Lampasas county, and Sanders conveyed to Dunn a tract of 460 acres of land in Culberson county, and paid to Dunn $50 in cash, and executed promissory notes for the sum of $3,000, to cover the difference in value between the two tracts of land. Thereafter Sander...
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Mrs. Ann Eliza Morphis died January ■ — , 1896, leaving a will by the terms of which she bequeathed to her grandson, John M. Gardner, $1,000 and other property not necessary to specify, and to her niece, appellee Mrs. Annie Ward Van Orden, then Annie Ward, a child about 11 years of age, $500, an undivided interest in a piece of land in Ballinger, and other property not necessary to specify. Had Mr...
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*1046
Findings of Fact
Appellee alleged that on September 21, 1911, he boarded one of appellant’s trains at Milvid with a negro prisoner, he being' the sheriff of Liberty county; that both himself and the negro prisoner were entitled to transportation to destination, which was Beaumont on that road; that he had a pass upon said road, and paid the transportation of said prisoner; ...
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While this appeal was pending, appellants filed their motion to withdraw the submission and dismiss said appeal, on the ground that the respective parties had compromised and settled the matters at issue between them. This motion was resisted by their attorneys of record, Messrs. Seiter Tallichet, for the reason that they had acquired an interest in said cause of action prior to such settlement b...
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On the night of December 18, 1911, one of the appellees' horses was found injured on appellant's track in the town of Willis, from the effects of which it died, and this action was brought by them in the justice's court against appellant to recover damages therefor. A trial there having resulted in favor of appellees, an appeal was taken to the county court, where a similar judgment was had agains...
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Statement of the Case. The following statement of the nature and result of this suit is taken substantially from appellant’s brief: Appellee, Matilda Allen, brought this suit- in the ordinary form of trespass to try title against Thomas Allen and Jerry Menefee for title and possession of 41.15 acres of land, being the east half of an 82.3-acre tract out of the Caldwell league in Travis county, ...
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This suit was brought by ap-pellee to cancel an executory contract for the sale of certain lots in the 'Laurel Heights addition to the city of Temple, alleging as a cause of action fraudulent representation of facts, in that the Western Land Corporation represented to appellee that it had a good title to said property, when in fact it was indebted for said property, said indebtedness being secure...
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This appeal is from an order overruling a motion made under article 1687, R.S. 1911, to appoint a clerk pro tempore in a suit brought by appellant in a district court of Dallas county. In his motion appellant alleged that H. H. Williams, the clerk of said court, was a party to the suit, and therefore that it was necessary, before he could procure the issuance of lawful process for service on said ...
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Appellee brought this suit against appellant, alleging in his petition that he sold and delivered to appellant 61 head of steers at §22.50 per head, and 80 bushels of oats at 75 cents per bushel, and one cow and yearling at §35, the aggregate sum being $1,467.50, and that appellant had paid §500 of that sum, leaving balance due of §967.50. Appellant’s answer contained a general denial, the two-ye...
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On the 22d day of April, 1912, purchased from Mrs. A. P. Jones, one of the appellants, a tract of land in Tom Green county and as part consideration therefor agreed to assume the payment of four certain vendor's lien notes outstanding thereon; said deed reciting, however, that he only assumed to pay the interest on said notes from the 1st of October, 1911. Appellee brought this suit for the sum of...
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In effecting a coupling between an engine and a flat car, appellant (employed by appellee as a switchman) had two of the toes of his right foot so crushed that they had to be amputated. In his petition appellant alleged that the couplers, or drawheads, on the engine and car were worn out and so defective they would not couple automatically, and that it was necessary for him to go between the engin...
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This case has reached this court by two routes. On April 28, 1913, M. Golding, as plaintiff in error, filed a transcript which was filed within the time required by law. On May 24, 1913, defendant in error filed a motion to affirm on certificate, accompanied by a transcript which shows that Golding gave notice of appeal, filed an appeal bond, and thereby perfected his appeal; but no transcript was...
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The suit was brought by Dallas county against James E. Bolton, the county tax assessor, and the sureties on his official bond to recover the sum of $402 and interest claimed by the county as balance of excess fees due it for the year 1908 and wrongfully retained by the assessor. The assignment made by Dallas county complaining of the refusal of the court to peremptorily instruct a verdict in favo...
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R. B. McCarty brought this suit against D. F. Gray and Barney Treadway. The plaintiff alleged in his petition that the defendant Gray executed and delivered to him certain promissory notes, secured by a chattel mortgage executed by Gray upon two mules. It was also alleged in his petition that the defendant Treadway was in possession of the mules, asserting some sort of title thereto. The defendant...
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This suit was originally brought by Thos. J. Freeman, as receiver of the International Great Northern Railroad Company, on the 9th of August, 1911, against Jacob, Ferdinand, and Gregor Friesenhahn, composing the firm of Friesenhahn Bros., John Burrage, as a member of the Collin County Grain Company, a partnership, and C. V. and E. P. Browne, as members of the Browne Grain Company, a partnership, ...
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On July 26, 1911, Stephen Marino, a boy about 10 years of age, was injured by a collision with an automobile owned by S.E. Bartley, and operated at the time by an employé, W. P. Reeves. Some time afterward Joe Marino, father of the minor, as next friend, instituted this suit against both Bartley and Reeves, and recovered a judgment in the court below for the sum of $2,500. The petition charged neg...
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Appellee is a contractor, and in January, 1912, was figuring with E. E. Coolidge, state agent of appellant, on the ironwork, roofing, cornice, and lintel of a building' which appellee was erecting. On the 18th of January appellant wired its said agent that it would furnish the ironwork complete for $1,820, cornice at $1.50 per foot; however, said agent was not authorized to contract, except subje...
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On the 8th of November, 1911, appellees, A. R. Dockray and wife, Maggie Dockray, being desirous of erecting a dwelling house upon their lot in San Saba, Tex., entered into a contract with appellant, W. R. Vickrey, whereby the latter obligated himself to construct said building in accordance with certain plans and specifications thereto attached, the said Dockray and wife at the same time giving to...
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The Wichita Falls Motor Company seeks by this appeal to reverse a judgment recovered against it by W. >L. Bridge for the sum of $1,500 for personal injuries. Plaintiff alleged in his petition that he was employed by the defendant as a wood work *1162 er a'nd builder of automobile bodies, and that while engaged in sucb service be was directed by the defendant’s foreman, under whom he was se...
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A. G. Ilseng prosecutes a writ of error from a judgment following a peremptory instruction in favor of Jack Carter and C. K. Oldham, specifically enforcing the following written contract: "State of Texas, County of Tarrant. This agreement entered into this the 16th day of January, 1909, between Carter Oldham, of Fort Worth, Texas, as parties of the first part, and A. G. Ilseng, of Fort Worth, Tex...
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Appellee sued Otis Alston and Durer Alston, as makers, and W. D. Martin, as indorser, of two promissory notes, aggregating, at the date of the judgment, $652.90, given by the Alstons to Martin for *Page 1166
a section of state school land in Reeves county. Neither Martin nor the Alstons contested the plaintiff's right to recover, but the Alstons pleaded over against Martin, alleging that at the t...
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By its suit against appellee, commenced in a justice court, appellant sought a recovery of $92.80 it claimed appellee owed it. By his cross-action in that suit appellee sought a recovery of $150 against appellant. The trial in that court resulted in a judgment in appellee's favor for $10 and costs. Appellant prosecuted an appeal to the county court, and there, on October 14, 1912, recovered judgme...
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Defendants in error on January 13, 1911, instituted suit in the court below against W. A. Mixon, alleging, in substance, that Mixon was the qualified assignee of one E. H. Robinson, a former merchant of Teague, Tex., acting under authority of a statutory general assignment dated July 16, 1910, and in possession of the property and estate of said Robinson conveyed by said assignment for pro rata di...
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This is a suit instituted by appellees, Annie Williams, the widow, and Louise Williams, a minor daughter, of J. A. Williams, deceased, in the employment of appellant as a locomotive engineer, who was killed in a head-on collision between his engine and another, brought about through the negligence of appellant's conductor, who was in charge of train 83, on which deceased was the engineer, in order...
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Plaintiffs in error, T. A. Fallen and T. N. Graham, brought this suit, as plaintiffs, in the court below to recover the title and possession of an undivided one-half of a certain tract of land, described in plaintiffs’ petition, and to cancel and correct a certain deed to said premises made by J. W. Fallen and wife to H. F. Wiles, January I, 1910, alleging that said deed was made by said Fallen...
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The deposition of appellee's witness Charles H. Sibley was taken in Chicago, Ill. After same had been returned to the court below and filed with the papers I in the case, and after same had been opened as provided for by the statute, in accordance with an order of said court it was sent by the clerk to the officer who took it in order that he might make his certificate attached thereto conform to ...
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Appellant requested the court to instruct the jury to return a verdict in its favor, and in its first assignment complains of the refusal of the court to grant its request. In support of the assignment it is insisted that the testimony failed to show negligence on the part of appellant, but showed "if there was any negligence causing appellee's injuries, it was his own negligence."
Declaring, in t...
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C. L. Perryman instituted this suit against the Ft. Worth Belt Railway Company and Swift Co. to recover damages for personal injuries received by him while engaged in making certain repairs to the passageway or vestibule of a doorway in one of the buildings owned and occupied by Swift Co., whose employé he was. Appellee received his injuries through the negligence of the defendants in causing a ...
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This is an action by R. B. Mallard against the Texas Central Railroad Company to recover damages for certain stock killed by the railroad company in the town of Plamlin in Jones county. There was a jury trial resulting in a verdict and judgment for the plainiiff, and the defendant has sued out a writ of error seeking to revise such judgment. Upon the trial in the county court the following char...
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This suit was instituted by J. B. Pate against W. H. Vardeman, Isaac Grindstaff, and John Lamm to recover damages for the wrongful issuance and levy of two certain writs of attachment. The case has been once before appealed and will be found reported in 141 S.W. 317. On the last trial judgment was rendered in favor of the defendants, and the plaintiff has appealed.
The first assignment is that the...
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Appellee sued the appellant company to recover both actual and exemplary damages for the conversion of two mules, and succeeded in securing a verdict and judgment for $757.50.
The seizure, if unwarranted, was under circumstances amounting to a conversion, and the principal question presented is whether the seizure was authorized by the terms of the mortgage under which the seizure was made. It is ...
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Page 1334
L. H. Bomar and George W. Riddle, defendants, have appealed from a judgment rendered in favor of W. El Munn and F. L. Portwood, plaintiffs, for commissions claimed by the plaintiffs, as *1187 real estate brokers for the sale of certain property owned by the defendants. The cause of action asserted by the plaintiffs was, substantially, that for a valuable consideration paid by them the defendant...
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This suit was filed on the 4th day of April, 1912, to recover damages alleged to have been sustained by appellee on account of appellant's failure to seasonably deliver a telegram authorizing Claude Miller to draw money for the use and benefit of appellee. The petition alleged that R. F. Richards, appellee's father, who resided in Merkel, Tex., sent the telegram to Claude Miller, who, together wit...
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The question presented for determination on this appeal is whether or not the proceeds of an insurance policy upon four pool tables, belonging to appellee, a married man, and used by him in the operation of a pool hall in the town of Graham, are exempt under the statutes from a writ of garnishment sued out by appellant. Paragraph 5, article 3785, Revised Statutes 1911, reserves to every family, ex...
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This suit was brought by the Co-operative Vineyards Company against the Ft. Stockton Irrigated Lands Company to recover damages for injuries to its 300-acre vineyard occasioned by seepage and overflow from defendant's irrigation canal
Plaintiff alleged: That the defendant is a private corporation, duly Incorporated under the laws of Texas, and also an irrigation public service corporation, with po...
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Plaintiff in error sued defendant in error for damages resulting from the destruction by fire of the sawmill of the plaintiff in error, consisting of machinery and buildings, together with certain lumber then on hand and belonging to defendant in error. It was alleged that the tracks of defendant in error are in proximity to the sawmill of plaintiff in error, and that in operating its engines over...
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This is an injunction suit brought by appellant to restrain appellee, as tax collector of Wise county, in the collection of a special school tax in common school district No. 80 in said county. As a ground for relief the complainant alleged certain irregularities in the manner of making the levy. The case was tried without a jury resulting in a judgment denying the relief sought.
The assignments p...
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Prom a judgment rendered by the county court in favor of appellee and against appellant for $377.76, for damages to two shipments of cattle, this appeal is prosecuted. The main contention urged in this court is that the evidence fails to show unreasonable or unnecessai'y delay and rough handling of the cattle, as alleged by the plaintiff. We cannot assent to that contention, and hold that the ver...
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F. E. and Etta Voss sued the Stephenville, North South Texas Railway Company, John R. Scott, and the firm of Thompson Scott for damages on account of the death of their minor son, who was killed while playing in a turntable pit belonging to and under the control of the defendants. The defendants answered, among other things pleading contributory negligence of the deceased. There was a trial befo...
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Appellant instituted this suit against appellee upon several different promissory notes, some made payable to appellant and others to the firm of D. June & Co., but all owned by appellant. The petition admitted that certain payments had been made and sought to recover the balance alleged to be due on several notes.
In his answer appellee admitted his liability on one of the notes for $150,...
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This is an action by Clara Chaison, as widow, and the other plaintiffs as, or in the right of, the children and heirs at law, of Jeff Chaison, deceased, against W. P. H. McFaddin, to recover the David Cunningham survey of 1,170 acres of land situated in Jefferson county, less a tract of 208 acres sold by Chaison and Hebert to W. P. H. McFaddin on February 7, 1885. The petition was filed February 2...
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This is an appeal from a judgment rendered in favor of Henry Ford against defendant, J. D. Wilson, instituted in the county court of Wichita county to recover upon certain promissory notes and for a foreclosure of chattel mortgage liens upon several horses and a crop of 150 acres of cotton.
Neither the original nor the supplemental petition, which constituted the pleadings upon which plaintiff rel...
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This writ of error was sued out by plaintiff in error to reverse a judgment by default, rendered in favor of defendant in error, against it on a fire insurance policy, on the ground chiefly that said judgment was rendered without legal service, and that it had a meritorious defense, which it was prevented from setting up without fault on its part.
The petition alleged that the firm of Dumas, Zimme...
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The statement of the nature and result of the case as stated by appellant we find correct, and is as follows:
"On the 23rd day of November, 1912, a judgment was entered by the Fourteenth judicial district court of Dallas county, Tex., upon the application of appellee, Dallas Consolidated Electric Street Railway Company, granting a temporary injunction against the city of Dallas and its mayor and c...
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On the 22d day of April, 1909, appellee executed the following instrument in writing:
"The American Home Life Insurance Company. "Subscription for Capital Stock.
"No. 2501. 50 Shares.
"Whereas, Stuart, Walker Company, of Fort Worth, Texas, are promoting the organization of a life insurance company, to be incorporated in pursuance of the laws of...
Views: 0
8224 Writ of error denied by Supreme Court.
Findings of Fact.
Appellants brought suit to recover an interest in certain lands in Falls county, Tex., alleging that said lands were formerly owned by J. M. Jackson and wife, Eleanor Jackson; that J. M. Jackson died in 1898, leaving a will, which was duly probated, by which he bequeathed all of his property to his said wife;...
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Page 1353
In cause No. 7,707 A. P. Rabb sued B. F. Moore, F. M. Watson, B. B. Watson, T. L. Watson, and W. P. Zindall, to recover the title and possession of a certain boiler and engine valued at $1,200. A writ of sequestration was sued out and levied upon the property, whereupon W. T. Moore filed a claimant's oath and bond for the trial of the right of property. Issues were made up under direction of the c...
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This is an appeal from an order of a district judge in chambers, refusing a temporary injunction. There is no brief for appellant nor assignment of errors. The record contains the plaintiff's petition, the order of the judge, and the appeal bond. The only question presented is whether the district judge erred in refusing the temporary injunction upon the allegations of the sworn petition. Much has...
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8224 Writ of error denied by Supreme Court.
This suit was brought by appellant against the appellee to recover an undivided one-half interest in lot No. 1, block No. 138, in the city of Port Arthur.
In addition to the usual allegations in a suit of trespass to try title, plaintiff's petition alleges, in substance, that on May 14, 1910, plaintiff and defendant became joint owners by purchase of a b...
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This suit was instituted by W. R. Miller Co., appellants, as plaintiffs below, against R. L. Hobdy and the First National Bank of Comanche, Tex., for the recovery of certain sums of money belonging to them claimed to have been converted by appellees, by means of certain checks unlawfully drawn by Hobdy in the name of Miller Co. on said First National Bank. There was a trial before the court with...
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8224 Writ of error granted by Supreme Court. *Page 100
Sullivan Co. sued Carrie Coleman for debt and to foreclose a vendor's lien on block No. 1 in Mission Ridge addition, Bexar county, Tex., and D. M. Poor instituted suit against James Raley, Helen Raley, and M. H. Poor to recover said block No. 1. The two causes were consolidated, and D. Sullivan Co. filed an amended petition alleging that R....
Views: 3
8224 Writ of error dismissed by Supreme Court. *Page 103
The suit out of which this appeal originates was instituted in the lower court by Lawrence Thomas the appellee, against Ben Banner, the appellant. The suit, aided by the writ of sequestration, was to recover the title and possession of certain store fixtures and furniture manufactured for and installed in appellant's store in the city of Da...
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By its second assignment of error the appellant surety company makes the contention that judgment should have been entered in its favor because it was discharged through the failure of the owner of the house and the contractor to perform the contract according to the agreement therein which provided that the owner was to pay the contractor for the work "the sum of $3,300 as follows: Each week duri...
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Appellees instituted this suit against appellant and the Texas Midland Railroad, alleging that on December 30, 1910, they delivered to appellant 440 steers for transportation over appellant's line of railroad from Roanoke to Greenville, Tex., there to be delivered to the Texas Midland Railroad for transportation on its line to Kaufman, appellant being informed at the time that the ultimate destina...
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This is a contest of an election held in common school district No. 80 of Wise county on the 22d day of June, 1912, to determine whether or not bonds should be issued by said district for the purpose of erecting a schoolhouse, and for the purpose of determining whether or not a tax of 20 cents on the $100 should be levied in said district for school purposes, and to provide for the payment of the ...
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Appellee recovered a judgment for the sum of $25 as rent of a certain house located upon a lot owned by appellant, and for the further sum of $100 for the final conversion of said house. [1-3] Numerous assignments of error have been presented, but the greater number in one form or another present the single question of whether the house for the conversion of which appellee sued was personal p...
Views: 1
This suit was instituted by C. W. Martin against J. C. Gray and Walter Gray as makers of 10 promissory notes, executed by them and made payable *Page 119
to Mrs. M. S. Gaines, aggregating at the date of the trial $4,665.12. The notes had been given for part of the purchase money of a certain tract of land described in the petition, and the plaintiff sought to foreclose the vendor's lien. It was a...
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Page 1367
8224 Writ of error dismissed by Supreme Court. *Page 120
Ross instituted this suit in the county court of Hood county to probate a certain instrument in writing purporting to be the last will and testament of M. Kell, deceased; Ross being named as independent executor of the will. Texanna Kell and Mrs. Christina Foreman, daughters of the deceased, were the principal beneficiaries of the will. Mat...
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(after stating the facts as above). [1] The court charged the jury that: “The law. provides that 75 per centum of the cars in trains, such as the one in question, shall be equipped with power or train brakes. Now if you shall find thaf75 per centum of the ears in the train at the time of the injury, if any, to plaintiff were not equipped with power or train brakes, and if you find that such fact, ...
Views: 0
8224 Writ of error denied by Supreme Court.
The appellant, Mrs. Lillie M. Bennett, administratrix of the estate of Howard C. Bennett, deceased, instituted this suit as such administratrix and in her own right and for the use and benefit of their minor children, to recover damages for the death of said H. C. Bennett, alleged to have been caused by the negligence of the appellee railway company. The...
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On appeal from a justice's court appellee recovered a judgment in the county court of Jones county against the appellant, T. J. Head, for the sum of $136 as commissions for the sale of a tract of land owned by appellant. The trial in the county court was before the court without a jury, on the 2d day of March, 1912. On the 21st day of March, 1912, the court, pursuant to a request, filed his conclu...
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Frank Sadau filed this suit in the county court of Clay county to recover from the defendant, the Fidelity Phenix Fire Insurance Company, for the loss of certain household goods destroyed by fire, alleged to be covered by the defendant's policy, in the sum or $500. There was a jury trial resulting in a verdict and judgment for the plaintiff, and the defendant prosecutes this writ of error.
There a...
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Appellee instituted this suit against the appellant to recover damages for personal injuries received by him while engaged in working in and about a cotton gin as an employé of appellant, while it was being operated in Sherman, Tex. In substance he alleged that he was working around certain gin stands engaged in oiling them, and in the performance of his duties it became necessary for him to place...
Views: 0
This cause was instituted by West Bros, to recover damages arising from delay in the shipment of certain cattle from Uvalde, Tex., to the National Stock Yards, Ill.,the defendants in the trial court being the Galveston, Harrisburg & San Antonio Railway Company, International & Great Northern Railroad Company, Texas & Pacific Railway Company, St. Louis, Iron Mountain & Southern Railway Company, and...
Views: 0
In December, 1912, Charles G. Cole, the appellee, recovered a judgment in the district court of Bowie county for $12,000 against the appellant, as damages for personal injuries. It is alleged in the plaintiff’s original petition that on the 27th of October, 1911, he was in the appellant’s service as a freight brakeman, and that, while walking on the running board of the train with which he was con...
Views: 0
8224 Writ of error denied by Supreme Court.
True Bros. shipped a train-load of cattle from Norias, Tex., to Ringgold, Tex., and this suit was instituted to recover damages for injuries sustained by the cattle as a result of delay and rough handling en route. The cattle were transported from Norias to Houston over the St. Louis, Brownsville Mexico Railway, from Houston to Ft. Worth over the Trinit...
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8224 Writ of error denied by Supreme Court. *Page 154
A. Oswald and E. T. Butlin, real estate brokers, doing business under the firm name of Oswald Realty Company, plaintiffs, brought this suit against J. E. Broussard and Ben Hebert, defendants, to recover $32,820 as the alleged agreed compensation to be paid to them by defendants for finding purchasers and making sale of about 12.860 acres of la...
Views: 0
On September 7, 1910, A. D. McCord filed suit against J. A. Hieatt, W. F. Miller, and the city of Dallas, alleging: That in the year 1910 he, the said McCord, and J. A. Hieatt formed a nontrading partnership for the purpose of undertaking the work of clearing the White Rock Reservoir site owned by the city of Dallas. That to this end the partnership of McCord Hieatt entered into a written contract...
Views: 3
The First National Bank of Merkel has appealed from a judgment against it in favor of F. G. Thurmond, for himself and as guardian of the estate of P. M. Thurmond, a minor. The judgment recites that appellant had made default, notwithstanding at the date of its rendition appellant had on file an answer to the petition. No statement of facts appears in the record, but it appears from plaintiff’s pe...
Views: 1
Appellant instituted this suit on January 26, 1911, to enjoin her husband, James Versyp, from trespassing upon and interfering with her control of the 200-acre tract of land occupied by her as a homestead and claimed in her separate right by virtue of a separation contract executed by the respective parties on the 12th day of February, 1910. A temporary writ of injunction was issued; but upon a tr...
Views: 0
This is an action of trespass to try title brought by Alex Freund and H. M. Curtin against L. S. Sabin. The trial in the court below without a jury resulted in a judgment in favor of the defendant. The land .in controversy is six blocks in what is known as the Ryon addition to the city of Houston and is a part of the John Austin two-league grant. This original grant was square in shape; the lines ...
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Page 1390
The appellee company on February 3, 1912, instituted three separate suits against the appellants, the Fidelity Phenix Fire Insurance Company of New York, the National Fire Insurance Company of Hartford, Conn., and the Northwestern National Insurance Company of Milwaukee, all corporations; but by agreement the three causes were consolidated and tried as one under the docket number 2,884. Each suit ...
Views: 0
Page 1391
Under the construction given to Revised Statutes 1895, art. 1668 (Revised Statutes 1911, art. 2391), by the Supreme Court in the case of T. P. Ry. Co. v. Wheeler, 99 Tex. 428, 90 S.W. 481, the court properly declined to dismiss the appeal from the justice's court, as was urged in appellant's motion therefor. But under the case cited, as well, also, as the cases of M., K. T. Ry. Co. v. Milliron,5...
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Page 1393
J. N. Brunson conveyed to J. H. Wilson 480 acres of land, reserving a vendor's lien to secure the payment of two promissory notes given by Wilson for part of the purchase money. Wilson sold 200 acres of the tract to H. E. Green, and reserved a vendor's lien to secure the payment of nine promissory notes in his favor executed by Green for part of the purchase money. These notes were purchased from ...
Views: 0
8224 Writ of error denied by Supreme Court. *Page 183
This suit was instituted by A. P. Farrar as administrator de bonis non of the estate of T. J. Farrar, deceased, against appellants as heirs of Mrs. Mattie Farrar, also deceased. It was alleged that T. J. Farrar and Mattie Farrar as husband and wife jointly owned the north half of block 1, Pavilion Park addition to the city of Comanche, and als...
Views: 0
8224 Writ of error granted by Supreme Court. *Page 186
It appears from the record on this appeal, as it did from the record on the first appeal of the case (Sauvage v. Wauhop, 143 S.W. 259), that John W. Wauhop and Mary J. Wauhop were husband and wife at the date of his death September 24, 1903, and that they then owned the land in controversy. John W. Wauhop bequeathed the property owned by him ...
Views: 0
On June 22, 1910, in a suit by the Nocona Nat. Bank of Nocona, Tex., against A. F. L. Goin in the county court of Montague county, judgment was rendered in *Page 190
favor of the plaintiff against the defendant upon certain promissory notes, together with a foreclosure of mortgage liens upon personal property. The judgment recites that the defendant had made default, although duly served with cit...
Views: 0
The Putnam Land & Development Company has appealed from á judgment in favor of Max Elser for real estate commissions, alleged to be due him by the company. The suit by Elser was upon a written contract, proven upon the trial, by the terms of which the defendant company employed plaintiff as its exclusive agent to sell certain lots and blocks of land in the town of Putnam, and agreed to pay him ...
Views: 0
This is an action of trespass to try title, brought by appellant J. N. Porter to recover from the appellees a part of the W. G. Anderson Survey No. 777 in Callahan county. The defendants pleaded the general denial, not guilty, the statutes of three and five years limitations, and answered specially, alleging they had bought the land at sheriff's sale upon a tax foreclosure, and prayed in the alter...
Views: 0
Appellee Cobb brought this action in trespass to try title against the appellants Laura A. Loomis, A. M. Loomis, R. W. Loomis, Marie L. Loomis, Pansy L. Latta, W. B. Latta, Annie L. Webb, and M. H. Webb to recover survey No. 154, block 1, of the San Elizario grant, containing about 61 acres. The case was tried before the court upon agreed facts, and judgment rendered in appellee's favor.
We will n...
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This suit waa brought by the appellee against the appellant to recover damages for personal injuries sustained by appellee while in the service of J. S. Rice and Cecil A. Lyons, receivers of appellant company, and which are alleged to have been caused by the negHgence of said receivers or their representative, Jim Bailey, who it is alleged was a vice principal.
The plaintiff alleged in his trial p...
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8224 Writ of error granted by Supreme Court.
This is a suit for specific performance of a contract for the sale and conveyance of land brought by A. P. Ward against W. G. Walker, L. M. Walker, C. K. Walker, and his wife, Riller Walker, C. W. Walker, and A. R. Walker. The action is based upon the following contract:
"The State of Texas, County of Jackson.
"This memorandum of an agreement entered in...
Views: 3
Page 1404
This suit was brought by appellee Paul, in trespass to try title, to recover a section of land in Lubbock county. There was a trial before the court, without a jury, resulting in a judgment for plaintiff for the entire section. Appellee Paul, plaintiff in the court below, claims the land under the following evidence of title: (1) An original land certificate, No. 16, issued to John H. Gibson and c...
Views: 3
8224 Writ of error granted by Supreme Court.
A. F. Park sued C. A. Swartz and G. V. Harris, doing business under the firm name of the Rock Island Townsite Realty Company, and hereinafter referred to as defendants, alleging that on the 17th day of September, 1909, the defendants entered into a written contract by the terms of which the plaintiff had been appointed the exclusive sales agent for the...
Views: 0
On January 2, 1912, an instrument in writing bearing date September 29, 1909, executed by Winfield Scott, now deceased, and duly attested by two subscribing witnesses, was admitted to probate in the county court of Tarrant county as the last will and testament of the deceased. The application for the probate of the instrument was filed by A. B. Robertson and Mrs. Elizabeth Scott, surviving wife of...
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The appellees are the heirs of John Buckley and wife, both of whom died many years ago. They instituted this suit against the appellant to recover a tract of 646 acres of land situated in Shelby county, and patented by virtue of an unlocated balance of a certificate, the original of which was issued to John Buckley in 1888. A portion of the certificate was located and patent issued to him in 1847....
Views: 0
The parties hereto on the 28th of June, 1911, entered into a written contract whereby the appellants bound themselves to convey by warranty deed to appellee 12,000 acres of land in Matagorda county, Tex., in consideration of the payment by him to them on the 1st of December, 1911, of $62,000 cash and the execution of his five vendor's lien notes of same date, each for the sum of $26,000, payable o...
Views: 2
8224 Writ of error granted by Supreme Court. *Page 376
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 377
The appellee, C. T. Word, sued the Ft. Worth Denver City Railway Company, together with the appellants, the Atchison, Topeka Santa Fé Railway Company, the Southern Kansas Railway Company of Texas, ...
Views: 6
Appellants during November of 1910 were doing business at ÍYaco, Tex., as real estate agents, and as such had listed with them for sale certain property situated in Waco belonging to one R. B. Carpenter; Mr. Cheatham of the appellant firm met 'Mr. Chester Smith, who stated that he had 526 acres of land in Hill county which he would like for Cheatham to sell. Appel-lee Dansby was the owner of th...
Views: 0
8224 Writ of error denied by Supreme Court.
On April 14, 1910, the appellee, T. J. Richards, sued Johnnie Floyce Rule, appellant, to remove cloud from 27 town lots in the town of Paducah, Cottle county, in which he sets out his title specifically about as follows: First. Patent to R. Potts, dated September 20, 1893. Second. Warranty deed from R. Potts to R. E. Avent November 2, 1893, recorded Apri...
Views: 1
8224 Writ of error denied by Supreme Court. *Page 399
The appellee, Shannon, brought suit in the district court of Gaines county against the appellant, the First State Bank of Seminole, Tex., for $5,000. The case was tried before the court without a jury, and judgment was rendered for appellee against appellant for the amount sued for, with interest thereon from the 5th day of July, 1910, at the ...
Views: 2
8224 Writ of error denied by Supreme Court.
This suit was instituted by appellees, a firm composed of J. E. Winkleman, O. I. Smith, and H. H. Cassles, against C. V. Woolley and H. H. Gillham, substantially alleging that Woolley and plaintiffs were engaged in the real estate business in the city of Canyon, in Randall county, and that plaintiffs, acting through O. I. Smith, made a contract with appe...
Views: 0
We copy from appellant’s brief that “this suit was instituted in the district court of Cottle county, Tex., by C. K. Johnson, as plaintiff, against the Quanah, Acme & Pacific Railway Company, as defendant, for the recovery of damages for personal injury, alleged to have been sustained by the said Johnson as a passenger on one of appellant’s mixed passenger and freight trains on the 1st day of Dece...
Views: 0
8224 Writ of error denied by Supreme Court. *Page 410
This is an appeal from a temporary injunction, issued to prevent the sale of certain property consisting of a frame ice plant building, a frame gin building, a frame cold storage house, one Frick 20-ton ice machine and apparatus, one underground fuel oil tank, one three-stand Murray gin, with boiler, engine, and gin machinery complete, situate...
Views: 3
S. H. Smith sued Mollie C. Guerre, surviving widow and only heir of E. R. Guerre, deceased, upon certain notes, and to foreclose a vendor's lien, and upon an assumption of another debt and lien upon certain land in Randall county. The record discloses that Smith and E. R. Guerre, during the latter's life, had a transaction involving the exchange of some land in Missouri owned by Guerre, for some l...
Views: 2
W. L. Douglass and J. H. Marshall instituted this action in the district court of Liberty county against the county judge and county commissioners, composing the commissioners' court of said county, the county treasurer of said county, and W. A. Myrick and W. D. Haden to enjoin the carrying out of a certain contract entered into by said commissioners' court with W. D. Haden for furnishing shell fo...
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This suit was brought by J. F. Cheek in the district court of Foard county against the Texas Pacific Railway Company, Kansas City, Mexico Orient Railway Company of Texas, Kansas City, Mexico
Orient Railway Company, and the Missouri Pacific Railway Company to recover of said defendants damages alleged to have been received by him in the transportation of 17 cars of cattle delivered at Colorado, ...
Views: 0
8224 Writ of error dismissed by Supreme Court. *Page 434
(after stating the facts as above). The trial court, though of the opinion that the sale of plaintiff's stock to C.J. Loe was invalid, concluded that plaintiff could ask nothing further than to be restored to the position the parties would have occupied had no such sale been made, and had suit been brought on the $1,000 note, with prayer fo...
Views: 1
This is an action brought by appellee against appellant to recover damages sustained by him in consequence of personal injuries inflicted through the negligence of appellant's servants. Plaintiff's petition alleges, in substance, that on or about January 21, 1911, the defendant, a private corporation, was engaged in constructing for the city of Dallas, Tex., a large water reservoir, known as "Whit...
Views: 0
Appellee filed this suit in the district court of Tarrant county to recover damages for personal injuries. The *Page 448
allegations in her petition, succinctly stated, are as follows:
On November 13, 1911, plaintiff was employed and had been employed by defendants for four months in working around the mangle in defendant's steam laundry, receiving and folding the linen and laundered articles aft...
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On a former appeal in this case the judgment refusing to probate the will was reversed. 150 S.W. 593. This suit originated in the probate court of Lubbock county, from which it was appealed to the district court of said county, and upon trial before a jury judgment was again rendered refusing to probate the will. Appellee, being the widow of the testator, contested the application to probate the w...
Views: 0
The appellee moves to dismiss the appeal in this case because the certificate of the clerk of the district court does not comply with the statutes and rules. The certificate is in the following form: "I, O. L. Couch, clerk of the district court in and for Collingsworth county, Texas, hereby certify that the foregoing transcript is a true and correct copy of the proceedings had in this cause, as pe...
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The appellees in this case present three motions. The first motion is made to strike out the transcript. This is based on the ground that the certificate to the transcript of the county clerk is defective. The clerk certifies "that the foregoing 49 pages contain a true and correct transcript of the record of all the proceedings had in the cause except the injunction bond." The transcript was filed...
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Plaintiff, William Thompson, appellee here, brought this suit to recover of the appellant, Almon Cotton, the penalty prescribed by the Revised Statutes for charging and collecting usury on money loaned.
Plaintiff alleged that on or about November 7, 1909, he borrowed of and from the defendant the sum of $30 for 30 days, and executed as security therefor his note and power of attorney, by the terms...
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R. H. Feehner and C. W. Rzeppa sued W. W. Browne upon a promissory note for $641.03, executed by the latter, payable to the order of Tewes & Richter, dated June 2, 1910, due September 1, 1911, bear-*462lug 8 per cent, interest, and providing for attorney’s fees. It was alleged that said note was given hy Browne in payment for goods bought by him from Tewes & Richter prior to January 1, 1910; that ...
Views: 0
The First National Bank of Amarillo and W. H. Fuqua filed in this court December 9, 1911, their motion to affirm on certificate a judgment against J. W. Rush and Mattie E. Rush obtained in the district court of Potter county on February 28, 1911.
On the 2d day of March, 1911, a motion for new trial was filed by J. W. Rush and Mattie E. Rush, which was overruled March 28, 1911, to which action of t...
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The appellee, Wm. Astle, sued appellant, A. H. Tandy, for damages for trespass on appellee's land by the cattle of appellant. We adopt the statement of the issues as set out by appellant in his brief:
"The case was tried upon the plaintiff's third amended original petition, in which the plaintiff alleged in substance that on the 13th day of January, 1910, he was lawfully seised and possessed of se...
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[1] We are unable to consider the statement of facts filed in this case. There is what purports to be two statement of facts — one is not a copy of the other. Both were filed in this court February 17, 1913, and both indorsed filed by the clerk of the district court of Collingsworth county, January 4, 1913. One is marked “original,” but this one has only the certificate of the court stenographer, ...
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8224 Writ of error granted by Supreme Court. *Page 475
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 476
Mrs. Mary D. Exall and her husband, Henry Exall, as plaintiffs, instituted this suit in the district court of the Sixty-Eighth judicial district at Dallas, Tex., on October 15, 1910, against Phœnix L...
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Page 1443
This suit was instituted in the district court of Wilbarger county, Tex., on January 24, 1912, by T. J. Pyle, Mrs. Anabel Swink, joined by her husband, J. W. Swink, Mrs. E. C. Pyle, Williams S. Pyle, Elizabeth Lou Pyle, and Richard Maxwell Pyle, minors, by their next friend, T. J. Pyle, and R. M. Pyle, by his next friend, T. J. Pyle, against J. G. Pyle.
On the 11th day of July, 1907, R. M. Pyle, w...
Views: 0
W. C. Newman, as agent of the American Home Life Insurance Company, sold to M. E. Tarwater a life insurance policy in said company May 5, 1910, for the sum of $3,000. In payment for the same Tarwater executed his note for the sum of $151.65, payable to the order of Newman. Newman indorsed the note to the Norris Implement Company. After its maturity, the Norris Implement Company sued Tarwater, as p...
Views: 0
The appellee sued the appellant, M. L. Porter, upon a check for the sum of $500, and upon the following contract as liquidated damages, alleging the failure of appellant to comply with said contract to convey the land in exchange described therein: "State of Texas, County of Hall. The memorandum of agreement this day entered into by and between R. L. Moreman of Hall county, Tex., parties of the fi...
Views: 3
This was an action brought in the district court of Parmer county for Andrew Heflin by his next friend, his father, Y. D. Heflin, and for himself, Y. D. Heflin, against the Eastern Railway Company of New Mexico, the Pecos River Railway Company, the Atchison, Topeka Santa Fé Railway Company, and the Pecos Northern Texas Railway Company, to recover damages for an injury received by Andrew Heflin a...
Views: 1
J. P. Snyder and R. M. Cooper were the owners of 1,577 head of sheep. Clay, Robinson & Co. held a senior lien on these sheep, which at the time of its payment amounted to $4,220, and the First National Bank of Hereford, the appellant herein, held a second mortgage, executed by Cooper, individually, upon an undivided one-half interest in the sheep, for the sum of $3,905.55. The appellee Dunlap p...
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Counsel for appellees concede the correctness of the following general
*21
statement of the nature and result of this suit, as contained in appellant’s brief: This is a suit brought by appellees against appellant, as comptroller, for the reinstatement of their license to sell intoxicating liquors. Ap-pellees alleged in their petition that on complaint filed against them charging th...
Views: 0
Page 1449
This suit was brought by appellees against appellant for an injunction to restrain him, and all other persons acting for or under his direction, from removing any of the relics or property in their charge from the northwest room of the first floor of the state capitol building, or from otherwise interfering with them in the use and possession of said room, alleging that appellant had informed them...
Views: 2
Willis Copeland sued the Ft. Worth Denver City Railway Company to recover damages for personal injuries sustained by him while in the service of the defendant company as switchman, and while engaged in its yards at Wichita Falls in the work of switching some cars engaged in interstate commerce. The plaintiff had a judgment for $17,000, and the defendant has appealed.
A brief statement of the fact...
Views: 1
A detailed history of this case may be found in the proceedings of former appeals. See 56 Tex. Civ. App. 162, 121 S.W. 213, and 103 Tex. 24,122 S.W. 254, Ann.Cas. 1912d 67. Only such general statement, therefore, will now be made as is deemed necessary to the present disposition.
In 1905 David Evans was the owner of a tract of about 32 acres of land situated near the city of Ft. Worth. During that...
Views: 0
On September 30, 1912, the appellee, Edgar Smith, instituted this suit in the county court of Hopkins county against the appellant to recover the sum of $498 as damages to a shipment of cattle. The petition, in substance, states that the plaintiff resides in Hopkins county, Tex., and that the defendant, the Missouri, Kansas Texas Railway Company of Texas, is a corporation existing under and by vi...
Views: 0
The Western Union Telegraph Company has appealed from a judgment in favor of Lester Johnson for damages for the defendant's alleged negligence in delaying the delivery of a telegram sent over defendant's line from Glazier, Tex., to Comanche, Tex. The trial was without the intervention of a jury, and the trial judge has filed findings of fact and conclusions of law, which are as follows:
As conclus...
Views: 0
At a former day, this cause was affirmed, and the motion for rehearing overruled (157 S.W. 752), because *Page 911
the assignments of error did not comply with the requirements of amended rules 24 and 25 (142 S.W. xii). Afterwards, and during that term of the court, we reconsidered our action and caused the order overruling the motion for rehearing to be set aside. Our action in reinstating the m...
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On March 6, 1911, C. C. Hemming filed a suit in the district court of Coleman county against R. H. Atchley, George N. Beakley, J. B. Hewell, and Charles S. Fisher, in which he sought to recover a personal judgment against all of the defendants for the sum of $2,170, and the foreclosure of a lien upon certain real estate. The plaintiff alleged in his petition that he had formerly sold the land refe...
Views: 0
Findings of Fact.
On July 11, 1891, the Provident Savings Life Assurance Society of New York, hereinafter referred to as the Provident Company, issued to appellee an "annual renewable term policy" for $3,000, payable at his death to his wife. This policy by its terms was to remain in force for one year from the date of its issuance in consideration of the premium then ...
Views: 3
This suit was brought by appellee against appellant to recover the sum of $12,000 damages for the alleged breach by appellant of a contract by which it had employed appellee to render personal services as superintendent of agents in the industrial branch of appellant's insurance business in the Houston district. The breach alleged was the wrongful discharge of appellee by appellant before the expi...
Views: 0
Appellee brought this suit in the justice court of precinct No. 1 of Harris county against the Houston Belt Terminal Railway Company to recover the sum of $84.74 due him by said company as wages earned in the service of the company during the month of September, 1910. The defendant company answered that it owed the sum of $84.74 wages earned by plaintiff as alleged in his petition, but that appel...
Views: 0
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