The Austin Statesman. (Austin, Tex.), Vol. 32, Ed. 1 Tuesday, July 7, 1903 Page: 7 of 8
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T AUSTIN STATESMAN. TUESDAY, JULY T, 1903
#
STATE COURT DECISIONS
Fore
testi
t8,
"i
LITTLE PRICES.
BIG RESULTS.
tantal
4
•••+++
Located Mt Austin:
R. R. Galns,
Help Wanted—Female.
Real Estate.
Help Wanted-Male.
COURTS OF CIVIL APPEALS.
Financial.
-
Business Personals.
Bargains
p)
COURT CRIMINAL APPEALS
Agents.
Summer Resorts
Hotel Directory.
..
BURNET HOUSED
Salesmen.
Summer Schools.
’3
Rales $2.00 per Day.
w
For Rent.
Business Chances.
pecial
fam-
week and low rates to
Office Fixtures.
)
9
Rates $2 per day.
said application for a writ of manda-
ROCKDALE,
TEXAS.
WETZEL HOUSE
Contractors and Builders.
Phone No. 6.
7
Rooms and Board.
KYLE,
TEXAS.
Moving Vans.
Wanted to Buy.
For Sale.
June 14, 1903,
Money to Loan.
8
tried on the 8th day of Decembe
Lost and Found.
of ordinary capacity. In
definition
N
(A%
Miscellaneous.
perty in controversy was subject to
proj
the
I
Pub. Co,
- I
Personal.
mnanded that If ai
It
$
t
I
Th* s
\
1
(
V
P
FOR RENT—New 4 room cottage with
bath, three blocks from the Avenue.
and resulted in ।
merit in favor of
the aggregate, or
•ear to have
ct the name
P-
by
of
be oyer-
witness.
/I
recover da
are shown
<
)
6
6
WHEN buying say you saw it’in The
Statesman.
One Block From Depot.
TRAVELING MEN’S HOME.
• I
DAVIDSON,
Presiding Judge.
WHEN buying say you saw it in The
Statesman.
Pe
Aust
udg
udge
WHEN buying eay you saw it in The
Statesman.
A. F. MARTIN & BRO.
Office 416 Congress Ave.
A
5(
s-
; -
200
•a
)
of his money
was restohed
.1
WANTED—A. second hand lathe, 14 to
22 inch awing, length immaterial. Ad-
drees Machinery. care Statesman.
WHEN buying say you saw It in The
Statesman.
•he stated facts only,
to the fail.
WHEN buying say you saw it in The
Statesman.
appellee for $1500 in
$750 for Hivida An-
WHEN buying say you saw it in The
Statesman.
AUSTIN WHITE LIME GO.
Manufacturers of White Lime,
and dealers in Cement* Plaster,
Hair, Fire Brick, 8 ewer Pipo,
Acme Cement Plaster.
PERSONNEL OF THE APPELLATE
COURTS OF TEXAS.
Supreme Court.
The second assignment may
ruled for the reason that the
Ignacio Garza, does not appe
given any testimony in effec
( GRIFFITTS Conege or Commerce se-
. cures god positions for its graduates.
Corner 18th and Lavaca.
DRINK Wootan Welle and Star Welle
i water for. kidney. liver and stomach.
' two glases 56 or 25c gallon. only at
iewyn A Anderson’s, Houston.
ONE CENT A
WORD
{
l-I
be
ri
th
■1
A
f J
Ke
in
But
3
Lc
hi
just
t
Health Seekers’ and Tourists’ Home.
Burnet is the Highest Point Between
Galveston and Llano—1300 Feet.
ny one did not have all
should be restored, it
WANTED.—In three states. If you can
sell or advertise grocery specialties
with straight salary traveling expenses
advanced write us, Triumph Co., Dal-
las, Texas.
prices on fuel
lelivery. Phone
clear, was to set aside and render nu-
gatory and ineffective the Judgment of
a court of competent jurisdfetion. The
allegations show that the county court
had fully passed upon and determined
the Issues in the suit between appellant
and appellee, and had decreed that the
e.
")
muH brought in the county
aforesaid, and from instit
M. T. Connor and W. H. Unary, for
appellant.
Carden, Senter & Carden, Dr appel-
lee.
r, 1902,
I judg-
an
W
pellee ignoring the method, provided
law, for renewing the judgment
WHEN buying say you saw it in The
Statesman.
The case was here once before. Bee
opinion in 48 S. W. Rep., 745.
This is a suit by appellee, Elvida
Anchonda, In her own right and as
mother and next friend of her minor
children, Simon, Solada, Rosalso An-
SODA FOUNTAINS. show cases, car-
bonators. bank fixtures. etc., made by
C. Mallander A Son. Waco, Tex. Write
for catalogue. Prices iow.
WANTED. Everybody to see the
patent bib at E. K. Black's, 321 E. 6th
Street.
a verdict and
I PER
charges give or ordinary
negligence. Charges simi
No. 2625--Hfth Assignment—W. E.
Conner, Allas Evans, alias Billy
Smiley, Appellant. vs. The State of
Texas. Appellee; Appeal From Tar-
rant County.
by Rice. It does not o0-
engine. In thorough repair. Inqi
J. H. Williamson’s. 514 Colorado
Every Woman
is interestedand should know
2A Aboat the wonderful
2 MARVEL Whirling Spray
23 The new Tagtaal Syrine, Inin*
Be fion and Bucion. Brat- Baf
2.- Convenient
42 Adeantenetaaty.
++++*****+*++±
FIRST-CLASS SERVICE 1
Via Illinois Central R. R. a
, From New Orleans to Mem-
4 phis, Loulsville, Cincinnati, St. 4*
4* Louis, Chicaxo and all points -4.
4* north and east. Three solid ves- -p.
f tibuled trains daily. Meals in «>
4- dining cars. Ask your agent for ♦
4 ticket via thia line. -4
Supply and
Hicks 4 Hicks, for appellant.
Mason A Maney and R. W. Hudson,
for appellees.
SALARIED PEOPLE—Ladies or gen-
tlemen permanently employed needing
money supplied quickly and confidenti-
ally upon your own name without se-
curity or endorsement; payments can
be made to suit you. National Credit
Co., 911 New York Life Bldg.
connection. Rates $2 per day. S
FOR SALE—A rour horse Otto
66,000 acres of land in LaSalle county,
Texas, $2 an acre, W. H. Graham A
Co.. Cuero, Tex. tf
mislead a jury
view of the
McLean A Scott, for appellant.
Howard Martin, assistant attorney-
general. for appellee.
Opinion—Conviction for theft, pen-
alty assessed being four years* . con-
fnement in the penitentiary. 'Phis is a
companion cuse to that of Randle vs.
State, 6 Tx. Ct. Rep., 305, which see
for facts. The testimony of the wit-
ness Lacy la practicallyy the same in
this record as reportd in the Randle
case, supra. The facts are brought out
a little more distinctly and with more
directness as to the circumstances at-
chonda, and $750 fur her said minor
chidren jointly.
The statement of the witness, Ignati
Garza, that the agent saw the children
before he gave them the tickets, was
the staement of a fact, not the con-
clusion of the witness. The same tes-
timony in effect was giyen by others
without gbjection. We therefore over-
rule the first assignment.
i which the
’ rare and of
ilrly framed
' FOR RENT— Cottage No. 207 W. 7th
BL Apply to Dismukes and Millican
/ or F. D. Glover.
A BEAUTIFUL place is Rosedale Min-
eral Springs. Cold spring water min-
eral water baths; scenery unsurpassed.
Address La Veto, Colo., Mrs. Alice
Roberts.
a.
tu" TOR RENT.—Nice modern cottage--
hint conveniently located. Joe Cloud, 113
SheiW. 8th St. 7
‘OR RENT—Nice 6-room cottage, near
ttHniversity, all modern conveniences.
EAW, WW. A. Boswell, 704 Congress ave.
....GILL HOTEL
W. QUEBeSaUX. Fun Supply and
Transfer Line- Prompt and careful at-
tention to all business. Phones 631.
deprive the prosecutor of his share of
the stakes or of the whole stake pro-
vided he should win, much less does it
ppear that Randle, who was out of the
Rime, had any complicity in taking
crarge of the money by Rice. It does
nc occur to me that the case of Por-
inX M TagapeBa 305 etd
care, For these rahons I do not con-
cun * HENDERSON.
----.l.----- udee "
"man 50 cents a month. ’
rates per
illes. Ade
FoI SALE—TwO lots, each 4 8x160, 2
blocks north of University. on Speed-
way. Apply E. P. Brolins, 707 Con-
gresa Ave. 7
T. J. Brown, associate
. Williams, associate
DAILY, home slaughtered meats,
better flavor. more healthful. prompt
delivery; a few trials shows the dif-
ference. W. J. Johnson, 1511 E. 6th;
knew phone 988.
LET US give you estimate on art
stained glass and colored glass of every
description. The Texas Art Glass Co,
Houston, Tex., 319 San Jacinto.
THE SUMMER Session or Griftt’s
College begins Monday. June 1. Morn-
ing sessions 8 to 12. Shorthand. type-
writing. bookkeeping, penmanship and
arithmetic. Coolest place in the city;
special rates; begin now. Corner 18th
and Lavaca.
Jit yt WK
if he cannot surply the "
MARVRI. a repine
, other, sendstmp for ulas-
tratedbook-eai*. Itftmfsll
particulars ahd d itectinni inyala
jabletoiadies MARVRI co..
! koob Tim "‛«TiNewXo
W. QUEBEDAUX. Fuel
THE COMMERCIAL HOTEL
Mrs. Newman, Proprietor.
|1.50 PER DAY.
Large, Airy Rooms, Everything Clean,
Cool and Nice., All Commercial Trav.
elere Stop at the Commercial.
HEARNE. TEXAS.
chonda, to recover damages for the
physical and mental suffering alleged
to nave been caused appellee through
the alleged negligence of the appellant
on or about the 25th day of November.
1900. Appellee alleges that on said
Court of Criminal Appeals,
Peripatetic, sometimes Tyler, Dallas,
Austin; W. Ia Davidson, presiding
judge; John N. Henderson, associte
judge; M. M. Brooks, associate judge.
Courts of Civil Appeals.
Five districts in all.
First District—- Located at Galves-
ton; C. C. Garrett, chief justice: W.
H. Gill, associate justice; K. A. Pt •Sl-
ants, associate justice.
Second District—At Fort Worth; T.
H. Conner, chief justice; Octe Speer,
associate justice; I, W. Stephens as-
sociate justice.
Al’Third District—At Austin: H C.
Fisher, chief justice; W. M. Key as-
sociate justice; Sam Streetman as-
sociate justice.
Fourth District—At San Anonio;
John H. James, chief justice; W. 8.
Fly. associate justice; H. II. Nell, as-
sociate justice.
Fifth District—At Dallas: Anson
Rainey, chief Justice: John Bokhout,
associate justice; Howard Terrpleton,
associate justice.
court as
uting any
WANTED—Women and girls to work
at Canning Factory. Come early in the
morning. Austin Canning Factory.
ns that stated in the bill of excep-
tions.
The bill sets forth that in answer to,
the question. "How long did that child
sickness last?" this witness was al}
lowed to testify "that the injuriejs s
claimed to have been inflicted upokr
plaintiff were the ones from which she
has suffered, and not the injuries fol-
lowing or produced by childbirth."
The statement of facta gets forth the
question end the answer to it specin-
rally and the answer was not either in
substance or effect what is stated in
the bill. The only testimony of this
witness that approaches what is re-
cited in she bill, appears to have been
given prior to the putting of the ques-
tion. and we quote this testimony to
show that she did not testify as charg-
ed. ’ Previous to the time she fell from
the train at Moore, she had been sick
a little while from the birth of a child.
She had been complaining and this
sickness down here was on account of
the birth of her baby, but she didn’t
have this sickness up here. She had
been, sick at Mr. Finch’s ranch from
the birth of her baby. Rhe was com-
plaining down here, but hot up here
with her side. This was all the 8ick-
No. 2794.—International and Great
Northern Railway Company, Appel-
lant, vs. Elvida Anchonda et aL, Ap-
pellees; From Frio County.
WANTED—To let a beautiful room not
yet completed: furnished or unfurnish-
ed; also other rooms, all with good
board, at Governor Lubbock’s 1412
Congress Ave. Mrs. Bettie Tyler.
MORPHINE. laudanum, cocaine and
liquor habits permanently and pain*
hilly cured at home; no detention
Dissenting Opinion, Henderson, J.—
At a former teyin of this court under
th same stat of facts a majority of
this court reversed a companion case
to this, as appears from the majority
opinion. I agreed to the disposition of
the former case, and my opinion then
was and now ia that the facts were not
sufficient to support the verdict. The
record here does not show that the
game of cards by which the alleged
theft is -aid to have been committed
WuN ever com iuded. The appearance
of the sheriff interrupted it. Ho what-
ever fraudulent pretext may have been
intended remnins to this day undevel-
oped. If it be conceded that under the
last clause of the statute it is unneces-
sary to prove that the possesin of the
property was obtained by any false
pretext, but it was only necessary to
prove that it was obtained with the
intent to deprive the owner of the
Value thereof, then I do not believe the
circumstances here are suffcient to
show that there was any such inten-
tion, According to the evidence, be-
fore the fume was played out and the
ownership of the stakes declared, the
sheriff suddenly made his appearance
on the scene, and the money was con-
cealed either in the drawer or one
Rice took possession of it. There is no
evidence that it was with intent to re-
tain it and ns soon as the sheriff de-
MIBGNSLADEDLLEGE
Opens Sent 21, IWX Oneofthe leading scbor.h
for Young Ladies to the Sooth. New bidinga,
pianos mid equipment, Caw pus ten acres, drand
mountoin nery in V alley of Virginin famed
fot health. European and American tdachera.
ROBERT LUDWIG, THE TAILOR.
DYER AND SCOURER.
Q, Q Clothes cleaned and
A « pressed in nrstelass style;
(g “K suits pressed. 600; pants
■ pressed. 15c. Fins suit»
If I to order tron $12.50 up
I Satisaction guaranteed
- " 400 E 8th BL
g
I T
I Fis I
kt
1
TRAVELING salesman for Texas to
sell retail trade. Attractive, salable
line. Established high rated house.
Box 17, Detroit, Mich.
CLOSING out summer stock, all our
shoes, slippers and oxfords’ for ladles,
children and men, at cost. Mutual
Shoe Co., on E. 6th St.
rse
zusn"
was guilty of
FOURTH DISTRICT.
No. 2717— J. W. Chriswel, Appellant,
vs. H. A. Lussier, Appellee; Appeal
from Dallas County.
A MODERN 8 room residence and
2 1-2 acres covered with trees, 13
blocks west of Avenue, on Fifth St.
Will sell or exchange for property
closer in. Dr. Graves, Sampson Bldg.
LOST—In getting oft Internatlonal 6:17
train, Austin, Thursday July 2nd, one
leather suit case, containing ladies
wearing appare and kodak. Liberal
reward If returned to R. M. Love, j,„
Comptroller’s office..
"First—That a writ of mandatory in-
junction shall Issue herein to the said
J. W. Chrisweli and the said J. Roll
Johnson, sheriff of Dallas county, Tex-
as, commanding and requiring them to
proceed no further under said writ of -- - ------
execution issued out of the county ‘date she, with her children, was at
court of Dallas county, Texas, as afore- ’ Moore, a station on appellant’s line
said, and that said writ shall be served of railway, and held tickets for pas-
upon the said M. T. Conner and W. H.{sage mi appellant s train from Moore
Useary, attorneys and agents in fact to Cotulla, defendant having knowledge
for said J. W. Chrisweli. ' of the relationship between her and the
Second—That said Chrisweli, and hltl children. That when appellant’s train
said agents, representatives and at- arrived, appellee placed her children
torneys, be enjoined from prosecuting ’ and her niece, who was Also with her,
- • - ■* - on board said train and attempted to
board the train, but by reason of the
cur to me that the circumstances hers
•how* that Rice obtined possession of
st under the circumstances in order to
CLOSING out summer stock, all our
shoes, slippers and oxfords for ladies,
children and men, at cost. Mutual
Shoe Co., on E. 6th St.
Notice to Contractors.
Sealed proposals will be received un-
til Tuesday noon. July 28, 1908, by the
board of trustees of the State Confed-
erate Home. Austin. Tex., for the erec-
tion of a two-story brick hospital
building. Copies of the plans and spec-
ifications can be seen at the office of C.
H. Hage. Jr., architect, Austin. Texas.
All proposals must be accompanied by
ft certified check for $500, payable to
W. H. Richardson, president board of
trustees, as a guarantee that the party
bidding will enter Into contract and
furnish bond for completion of build-
ing, according to plans and specifea-
tions. The board of trustees reserves
the right to reject any and all bids.
W. H. Richardson, President Board
of Trustees. C. H. Page, Jr., Archi-
tect.
mortgage held by appellant. A
Transfer Line; special
supply for summer di
631.
ALL GRADES of screens made to
order; satisfaction guaranteed; illus-
trated catalogue of valuable informa-
tion free. Dallas Screen Co., Dallas,
Tex.
part of defendant. There is nothing
of a substantial nature In the point.
If no negligence of defendant appeared,
plaintiff could not recover at all. Con-
tributory negligence becomes import-
ant in any case, only where defendant’s
negligence is found to exist. It neces-
sarily must concur or co-operate to
produce the injuries.
The substance of the requested
charge referred to in the seventeenth
assignment was given. The eighteenth
and nineteenth assignment complaining
of the verdict as being against the tes-
timony in reference to plaintiff’s con-
tributory negligence and to notice to
defendant of the relationship of the
children to plaintiff, are not sustained.
Also the twentieth, which urges that
the undisputed evidence is that plain-
tiff failed to use the means she had
at hand to discover and know that the
children were safe and thus could have
avoided mental suffering on that ac-
count. The tweny-first, twenty-second
and twenty-third are overruled.
The sixteenth assigunent complains
of the refusal of the following charge:
"Gentlemen of the Jury- If you believe
from the evidence that plaintiff. Rivida
Anchonda, caused her children to board
defendant's train while it was in mo-
tion and then before it stopped and
while it was still in motion herself at-
tempted to board said train, you will
return your verdict for the .defendant
unless you believe that an ordinarily
prudent person would have done so
under like circumstances.**
It is not denied that the issue was
submitted in a general manner by the
general charge, but appellant insiste
that It was entitled to have It sub-
mitted in the particular form. We
think what is said of a similar charge
in Ry. vs. Rogers, 91 Tex., 61, applies
to this one.
Our conclusions of fact are that ths
Injuries sustained and for which the
judgment allows a recovery, were the
proximate result of defendant's neg-
ligence; that defendant had notice of
the relationship existing betvnen plain-
tiff and children: that pldptif was
not Ruilty of contributory negligence,
and that the verdict is not excessive.
Judgment affirmed.
J. H. JAMES,
__ . , Chief Justice.
Motion for rehearing overruled July
1, 1903.
WANTED—Intelligent persons to copy
letters home; M2.50 paid weekly. Send
stamped envelope for sample letter
and instructions. Eureka Company, 23
Duane St, New York. s :
620,00 a hundred writing letters home.
Addressed envelope for particulars.
Electric Remedy Co., Dept. 87, 234 So.
Michigan, South Bend, Ind.
federates in the game. It is shown very
dearly that appellant was confederate
and principal in the game of cards by
which lacy’s money was secured, and
that 690 of it went Into the possession
of Rice. The sheriff testified that when
he went into the room four parties
were seated around the table, and ap-
peared to be in a game of cards. He
ordered them to close up their game
and room, and return the money to the
parties to whom it belonged. They
had 690 of Lacy's money, which was
returned to him. Without going fur-
ther into the facts, we only deem it
necessary to say that the evidence is
practically the same as in the Randle
case, supra; and shows unquestionably'
that appellant inveigled Lacy into a
game for the purpose of cheating him
by means of said fame, out of his
money. Appellant’s main contention is
that the facts are not sufficient, and
that the court erred in not charging
the Jury to acquit appellant. For the
reasons stated in the Randle case, the
majority of the court came to the con-
clusion that the evidence was not suffi-
cient to show that Randle participated
in the game and fraudulent devices by
which Lacy’s money was obtained. The
testimony is unquestionably sufficient
to show appellant’s participation in the
transaction. This case is brought di-
rectly within the rule laid down in
Hotter's case, 28 Tex. Cr., 295. The
judgment is affirmed.
fact that Appellant negligently failed to
stop said train a reasonable length of
time for passengers to get off and on.
she was unable to board the train. That
in trying to do so she was thrown
down and sustained physical injuries.
That appellant’s train moved off with
her children and her said niece and
took them to Cotulla. That appellee
suffered great physical and mental
pain by reason of her separation from
and her anxiety for the safety of, her
children. Appellee claims that appel-
lant was negligent in failing to stop
its train a reasonable length of time
at Moore station, and failing to ob-
serve, look or ascertain appellee had
her children trying to board the said
train.
Appellant answered by general and
special exceptions, general denial, and
specially plead that It had no knowl-
edge df the relationship, if any, .be-
tween appellee and the children with
her, and that appellee was gulity of
contributory negligence in attempting
to board the train whle in motion, and
in failing to board said train while it
was standing still and in failing to use
reasonable diligence to ascertnin the
safety of her children after the train
left Moore station.
The suit was originally brought by
Filipe Anchonda, the husband of ap-
pellee, who. however, died during the
pendency of the suit. The case was
niture, carpets, etc., fuels, fresh meats,
feed, flour, meal ete-, farm implements,
garden and field seeds groceries hard-
ware, tools, ete. hrness, laundry sup-
plies, leather and shoe findings, lumber
and builedrs material, men's and boys'
furnishings, musical instruments and
supplies, oils, packing house products,
piece goods, plumbing and steam heat-
ing supplies, painters" and artists" ma-
terials. school shd kindergarten sup-
plies. tailors' supplies, toilet paper.
W. B. ANDERSON.
Stats Purchasing Agent.
If you are in s hurry for brief
work, try us. Day and night we sro
setting law work for tho prefession,
an d. always have a battery of notypes
thiat can be put on a rush orde,
GAMMELiTATtSMAN PE. co,,
Austin Texs.
case, the court instructs the jury that
if under subdvisions VI and VII of
this charge, if you fird for the plaintiff
upon either or both of the instructions
in Hold subdivisions respectively, that
the plaintiff is entitled to recover, then
you will consider in assessing the dam-
age sustained by plaintiff, all personal
injuries and physical pain consequent
thereon and mental anguish arising
from such personal injuries, and also
all mental anguish of plaintiff arising
from the separation of plaintiff from
her children (unless you find against
plaintiff under subdivision VIII, as to
thia lat item, which you may find from
the evidence to be direct and proximate
result of the negligence of defendant,
as heretofore instructed you under
subdivisions VI and Vil (if you be-
lieve from (he evidence that (he de-
fendant was negligent), such sum aft
actual damages as will in your judg-
ment reasonably compensate plaintiff
for the injuries she has sustained, and
FRED L. LAKE, the rubber stamp
man, for notary or corporation seals,
stencils, checks, etc. Stamps made
every day. 285 Main St., Dallas, Tex.
Catalogue free.
WANTED—Good pastry cook, woman
preferred, white or black. Hancock
Hotel. 7
Idress E. MARSCHALL,
Llano, Texas.
Office of State Purchasing Agent
Austin, Tex.. June 17. 1903.
Sealed proposals will be received by
the undersigned at Austin, Tex., until
10 o'clock h. tn.. Wednesday, July 29
next, and then opened, for furnishing
one or all of the Texas state charitable
and eleemosynary institutions with a
three to twelve months' supply be2Irv
ning Sept. 1, 1903, of the articles ent*
meratedin the undernotd schedules
referred to and rode a part of this ad-'
vertisement: Boots and shoes, black-
smith's tools and materials, clothing
crockery. lassware and aluminum
goods, dry. goods end notions, drugs
and chemicals, drug sundries and pro.
prietary articles, electrie supplles fur-
FOR RALE-—A beautiful building.
•Ite 85x150 feet corner, on street car
line, near University, convenient to the
capitol. Excellent neghborhood. Ad-
dress 8. A. U., Statesman office.
OP. SALE—A list of 4009 attorneys in
‛exas, full address, for $5.00. H. P.
(. Gammel. Austin. Tex. tf
MONET to loan on farms; no com-
mission charged. Brown Bros. tf
BUSINESS property, well located; we
make loan upon; low rates: easy pay-
ments; loans also on acreage property
adjoining city limits; money promptly
secured. People’s Building and Loan
Assn.* Win. G. Bell, Sec’y, 415 Congress
Ave.
RELIABLE general agent wanted in
L every county to sell our popular acci-
I dent and sickness policies; new plan;
f death benefit; weekly Indemnity; spe-
) cifa indemnity for loss of limbs or
/ eyesight; free medical attendance;
r many other original and popular fea-
\ tures. Annual premiums $1 to $6; no
) assessments or dues, issued to either
r sex without regard to color, nationality
< or occupation. All claims promptly
and liberally settled. More policies is-
sued and more claims paid under our
system than by any other company in
the world, because we give the most
popular and cheapest insurance writ;
ten. Exceptional opportunity to obtain
sole control of territory by applying
immediately; previous experience not
required, but financial responsibility
absolutely essential. Address The In-
L ternational Company, 231 Broadway,
” New York.
F+***T*FT
: WANT ADS:
from business; action immediate;
leaves patient In natural healthy condi-
tion without desire for drugs; cure
guaranteed for 610. Write for particu-
lars. Dr. Long Co., Atlanta. Ga.
ment. Defendant's witness. A. (\
Kennedy, was asked th question:
"Did Nathan Williams coms to Hear*
•all with the bulance of the witnessed
a few days ago?" to which question
defendant objected because immaterial
and irrelevant, whereupon plaintiff'S
counsel stated to the court: f‛We slat*
ed to the court the other day that, Ww
would like to have him put under th
rule, if we could have him here, and we
desire to show where he la and wha
became of him. The object is to show
show the jury why we don’t put him
on the stand." The witness appears t
have made answer: "He was here ths
other day, and he has not gone by our
consent." The bill was taken to the
above remarks of paintift’s counsel,
because they were calculated to and
did prejudice the jury against defend-
ant. Defendant of course did not ex-
cept to the answer of the witness. The
judge states in the bill that he there-
upon instructed the jury not to con-
alder anything as to Nathan’s absence
or presence at sll. It seems to us that
here is nothing substantial presented
by4he assignment of error.
The sixth, seventh, ninth, tenth,
eleventh, twelfth and thirteenth as-
signments are attacks on the court's
charges
There is, we believe, nothing advanc-
ed under the sixth and seventh assign-
ments which would tend toward a re-
versal of the judgment.
The ninth assignment presents thia
proposition: Appellant, would not be
liable for any mental suffering of ap-
pellee by reason of the separation from
her children, unless at the time appel-
lee attempted to board said train the
appellant knew of the relationship, or
at least that some relationship existed
between appellant and the said chil-
dren.
In paragraph 4 of the charge, the
one to which this assignment is ad-
dressed. were not qualified in Mint
proper manner, the assignment would
be well taken. The criticism, briefly
stated, is that it instructed the jury
th find for plaintiff regurdless of the
Question of appellant's knowledge of
the relationship between appellee and
the children. We can readily concede
that if appellant was not at the time
cognisant of relationship between
plaintiff and the children, it ought not
to be held for menta languish resulting
from the separation that took place. If
ths charge stood alone, it would be er-
roneous. But subsequently in the
charge the court deals with this form
of mental anguish, and refers back to
paragraph 6, and expressly removes the
objection now urged. In paragraph 6
the jury are distinctly told that plain-
tiff could not recover for mental an-
guish arising from such separation,
unless the Jury believed from the ev-
idence that defendant did not know
of the relationship existing between
plaintiff and the children; and in para-
graph 9 all seeming contradictions on
the subject are explained and harmo-
nised. To illustrate this we copy par-
•graph 9 of the charge:
"There being two concurring causes
of negligence complained of In this
other action anywhere against plaintiff
based upon the judgment obtained in
said Chrisweli vs. Douglas et al.
Third—That the defendant J. Roll
Johnson be required and commanded
to deliver the property In controversy
to the plaintiff, and that the same be
adjudged to be her property.
Fourth—That citation Issue herein in
terms of the law to the said J. W.
Chrisweli, and that on final hearing
hereof plaintiff shall have Judgment
against the Raid Shriswell for 6600
actual damages, and $5000 exemplary’
damages, because of the premises, and
such other nd further relief as to the
court may s"m just add equitable."
Appellant moved to dismiss the suit
on the ground that the district court
was without jurisdiction to restrain
the execution issue by a county court
and to restrain the trial court of a
cause pending therein, and because it
appeared from the petition that appel-
lee had an adequate remedy by ap-
peal. Appellant pleaded In answer that
he had obtained a valid Judgment in
the county court against appellee for
the property in controversy, and that
the whole matter was res adjudicata.
A temporary writ of injunction was
granted appellee, and after overruling
the motion to dismiss and exceptions
fledby appellant, tho court adjudged
the property to belong to appellee, and
ordered the sheriff to deliver It to her;
that she recover nothing for dam-
| ages, and that she recover all costs
i against appellant.
I The prim* purpose in this suit, it Is
tending the game of cards in which
prosecutor lost his money, and shows
s that $90 of Lary's money had passed
. Into the hands of Rice, one of the con-
Notice to Contractors.
Sealed proposals will be received un-
til Monday noon, July 27, 1903 by the
Board of Trustees of the State Blind
Asylum, Austin Texas, for the erec-
tion of a two story and basement brick
school building, copies of the plans and
specifications can be seen at the office
of C. H. Hage, Jr., architect, Austin,
Texas. All proposals must be accom-
panied by a certified check for 61000.
payable to R. C. Walker, President
Board of Trustees as a guarantee that
the party bidding will enter into con-
tract and furnish bond for completion
of building, according to plans arid
specifications. The Board of Trustees
reserves right to reject any and all
bids.
R. C. Walker, Pres. Board of Trus-
tees. C. H. Page, Jr., Architect.
no more, not to exceed the amount
claimed in her petition.
' By proximate caune we do not mean
the last act of cause, or nearest act to
the injury, but such act wanting in
ordinary care as actively aided in pro-
ducing the injury as a direct and ex-
isting cause. It need not be the sole
cause, but it must be n concurring
cause such as might reasonably have
been contemplated as involving the re-
sults under the attending circum-
stances''
Under the ninth assignment we find
another proposition, complaining of the
clo8ig sentence of the same paragraph
which was "Unless, however, you be-
lieve from the evidence that the de-
fendant's servants and employes stop-
ped its train at Moore on the day and
date alleged by plaintiff, a reasonably
sufficient length of time which would
have permitted plaintiff with her niece
and children to get on the cars by the
use of ordinary diligence and care, and
the failure to do so was through the
nerilgence of plaintiff, then you should
find for the defendant/' The criticism
ofeved to this part of the Instruction is
that it requires the jury in order to find
for defendant to go further than to find
that the train was stopped long
enough to have enabled appellee to get
on the car by the exercise of ordinary
care, and to find In addition that her
failure to board the train was due to
her negligence. If the clause quoted
had been conditioned on the use or or-
dinary diligence and care under all the
circumstances then existing. It may be
that the words "And the failure to do
80 was negligence of plaintiff’’ would
have been a useless and unnecessary
addition. This may have been unnec-
essary in any event. We think, how-
ever, there was no error in the added
words. They were not calculated to
WHISKY, opium, morphine or any
other drug habit on earth cdred in
forty-eight hours, without pain. No
more craving. Ry stem toned up in a
few days and well again. (Non-dell-
rious treatment.) All work guaranteed.
No cure, no pay. Sanitarium and home
treatment also. Address Hubbert’s
Sanitarium, Hico. Tex.. T. J. Hubbert.
M. D., supt.; C. M. Fellrath, asst
in this respect have been approved. Ry,
Vs. Cassidy, 92 Tex., 526.
Tlie eighth paragraph of (he charge
is brought into question by the
eleventh assignment upon the grounds,
first, that it deals with the subject of
defendant’s liability for plaintiff’s
mental anguish cauzed by the separa-
tion from her children, and does not
condition recovery therefor on the ab-
sence of her contributory negligence
In attempting to board the train; arid.
Second, that by language used In said
clause, to wit: 'The court instructs
you that knowledge of defendnkO
agent at Moore is knowledge of the
company"’—the court assumed that the
Agent had ruch knowledge. This iatte r
contention does not demand discussion
and is overruled. The former will also
be overruled, ns the two preceding par-
Akrapha of the charge had told the
jury plainly to find for defendant if
such contributory negligence existed,
and the jury could not have failed to
understand that paragraph eight was
Intended to apply only In they found
for plaintiff under other instructions.
The tenth questions the seventh par-
agraph of the charge We believe (here
is nothing requiring 11 special discus-
Mon in thre first proposition. The nec-
brut proposition has to deal with this
language of the charge: “If you so
believe was negligence, and that such
negligence, if any, was the direct and
proximate cause of the Injuries com-
plained of by plaintirf In her petition
then and ih that case plaintiff should
recover for nil the injuries, physical
and mental, arising from such physical
Injuries, if any, complained of in her
petition.' We can detect nothing
On January 17, 1902, appeilee, us
plaintiff, filed her petition ii the dis-
trict court, alleging that she owned
and operated a bafber shop id the city
of Dallas, and had therein certain arti-
cles of furniture used in her vocation,
that she had bought the property at an
execution sale, that afterwarts, J. W.
Chrisweli obtained a judgment in the
county court of Dallas county against
appellee and one J. B. Doughs, fore-
closing a mortgage lien on Die prop-
erty described, said mortgage being
one given subsequently to the one
which had been foreclosed on the
property by said 8am Freshman undre
whose execution appellee had bought
the property; that the J. Roll Johnson,
sheriff of Dallas county, had seized her
property by virtue of the execution
against appellee and Douglas and ad-
vertised the same for sale, that appel-
lant, J. W. Chrisweli, had taken the
property from appellee by an illegal
writ of sequestration, that appellee was
too poor to give a supersedeas bond in
the case of Chrisweli against Douglas
and herself, and that the judgment in
said suit and the value of the property
was less than 6100. In an amended
petition it was allegd in addition to
the foreging that judgment in the Bull
in the county court had been rendered
against her and tier sureties on a re-
plevin bond for 6184: that since she
had filed this suit appellant had ap-
plied for another writ of execution,
which had been issued, but afterwards
withdrawn from the sheriff by the
clerk of the county court, and that ap-
pellant had applied to the county court
for a mandamus to compel him to Issue
the execution, and that the application
was pending in that court. The prayer
was as follows:
Non resident clients have author-
ised me to aell at a sacrifice, the fol-
lowing real estate:
(1) A 34 acre farm about 1 mile from
city limits.
(2) A five room residence on 26th
street. This will be sold at 48 2-8 per
cent below its appraised value four
years ago.
(3) Two story, six room frame resi-
dence and lota 138x186 feet, in good
neighborhogd, within five minutes’
walk of postofic. Will sell beluw its
assessed value four years ago.
(4) Lots 100x168 feet, sold on game
rates.
(6) Three lots two blocks from car
line, Raymond plateau.
(6) Lot 69x188 on Rio Grande street,
corner lot with house, one block of
graded school. Ferms to suit.
Z. T. FULMORE.
. Local agents paid $2 per day. No
experience necessary. Men or ladies.
You commence work tomorrow.
Traveling agents paid $80 per month
with all expenses. Call only if inter-
ested, 802 West 26th St. 13
FOR RENT—House with five rooms
and large gallery and all the modern
conveniences. Apply Fisher Bros.,
609 W. 6th St._______________________
FOR RENT—Residence. No. 707 La-
vaca St. Apply Dismukes A Millican,
or F. B. Glover.
ness she had prior to the fall." In thi
testimony rhe zUtcd ‘
tacts that existed prior t______
can see nothing in this that c
Mid to be an attempt at expert
mony as to whether or not plaintiff'
sutering was the result of ipjurie re
ceived in the accident omplained of gene
instead of the childbirth. We think i subs
unnecessary to consider the questiot
of the witness’ competency to give tes
timony as she is charged with giving,
in connection with statemnts of the
judge qualifying the bill.
l-2ataDgkbpSbfpar-Q es ETAOIN
We also overrule the fourth assign
county courts, invoked the jurisdiction
of the distriet court, and tbe spectacle
is presented of the judgment of the
county court being completely set aside
by a court that has no jurisdiction In
the matter. Under the constitution and
laws of Texas the district court has no
revisory power over the judgment of
county courts, except in probate mat-
(era. Even in probate matters, over
which the district court has appellate
jurisdiction, it can not In a direct pro-
ceeding annul the decree of a county
court, and certainly it has no authority
to exercise such power bout a matter
over which it could have neither orig-
inal or appellate jurisdiction. Franks
vs. Chapman, 40 Tex., 46 and 61 Tex..
676.
It is provided in article 2996, Revised
Statutes, that "writs of injunction
g^nted to stay proceedings in a suit.
or execution on adjudgment,shall be re-
turnable to and tried in the court where
such suit is pendins, or such judment
was rendered." The language of the
Statute is imperative and seems (o be
so comprehensive as to include all rases
and so clear as to render construction
absolutely unnecessary, but still St has
been so construed as to narrow its
terms and engraft exceptions upon it,
that da not appear on the srace of
its simple language. For instance, in
Vam Ratcliffe vs Call, TI Tex., 461, it
is held that the statute does not apply
to injunctions restraining the sale of
property claimed to be exempt from ex-
ecution. and in Seeligson vs. Collins, 44
"Tex., 314. it waa held in effect that the
statute only applies to injunctions that
question the validity and regularity of
the writ of execution, but not to those
who suspend or stay the execution. In
In the case of Capp vs. eachman, 89
Tex., 490, the supreme court Said:
do not wish, however, to be understood
as holding that the district court was
without jurisdiction over the subjeet
matter of the validity of the execu-
tion." In that case an injunction was
applied for In a district court in Dallas
county to restrain an execution issued
out of a district court in Tarrant
county.
In the case of Bell vs. York (Tex. Civ.
App.) 43 8. W. 48. It appeared that
judgment had been rendered in the
county court, and an injunction was
•ought in the district court to enjoin
its execution on the ground that it waa
fraudulently obtained, without juris-
diction. and that the property nought
to be taken was exempt from forced
sale, and it was held that the district
court had no jurisdiction to enjoin the
judgment of the county court, or any
process issued therefrom.
These different decisions may per-
haps cause Home uncertainty as to
what class of cases the statute is ap-
plicable, but we conclude that if the
law has any force and effect whatever,
it must apply in a case like the one
now under consideration. It would
seem on the ground of public policy,
there should be such comity between
the different courts of the state as to
prevent unseemly conflicts and advance
the orderly administration of the laws
of the state.
Under the allegations in the petition
the question as to the ownership of
the property had been fully considered
and definitely determined in favor of
appellant, in a court uf competent
Jurisdiction, and the effect of the ac-
tion of the district court waa to set
aside and render nugatpry that judg-
ment. The statute and public policy
condemn such action. Smith va. Mor-
gan, 67 R. W.. 918.
The demand for an Injunction Was
ignored by the district court, but no
injunction was needed when it took the
property levied on by the sheriff and
placed it in the possession of appellee,
and declared in effect that it was not
subject to the execution that had been
Issued out of the county court.
In the amended petition appellee set
up a demand for damages for the
selzure of her property, to which the
district court had jurisdiction. That
part of the suit was adjudged against
appellee, and of this action she made
no complaint. We think there is no
doubt, as intimated in Capps vs.
Leahman, above city, that although
the court had no authority to grant an
injunction or to annul and set aside the
judgment of the district court, it had
jurisdiction over the matter of dam-
ages.
The judgment In so far as it ad-
judges that appellee is not entitled to
damages against appellant is affirmed,
but that part of it decreeing the prop-
erty in controversy to belong to appel-
lee and ordering the sheriff to place It
in her possession is reversed and the
cause dismissed. w. 8. FLY,
Associate Justice.
tween injuries the pre
an act and injuries of
the proximate cause.
The twelfth assignment can not be
orVegnristorpirenentgneadehniion
tioned: "Contributory negligence in
its legai siguintion is each an ad
or omission on the part of the plain-
tiff amounting to a want of ordinary
aand proper care and prudence as con-
curring or co-operating with some neg-
ligent act of the defendant and la the
proximate reuse of the occasion of the
injurles complained of.” It In con-
tended that the effect of thia charge
as worde was to inform the jury that
there could be no contributory negil-
genre upon the part of plaintiff unless
there was concurrent negligence on the
Agona Hotel,
" LIAno; TEX.
Three-story brick building; 60 rooms
Hotel overlooks beautiful mountain
scenery on banks of Ilano River. Fish-
Ing, dancing hall and bowling alley in
R SALE—A 14 horsepower Weber
jollne engine, used only a few
nths; a 6 horsepower Otto gas en-
e and a 2 1-2 horsepower gas en-
. used only a short time. Address
Qerintendent Gammel - Statesman
WANTED everywhere—Hustlers to
tack signs, distribute circulars, sam-
ples, etc.; no canvassing; good pay.
Run Advertising Bureau, Chicago.
CIRCULAR and samle • distributors
wanted everywhere. No canvassing.
Good pay. Co-operative Adv. Co.,
N. Y.
ulre At
• St. tf
t
ton
ant
S
ENERGETIC Man as district superin-
tendent to manage our business in
your own and nearby towns; salary $60
monthly and expenses; honesty and
sobriety more essential than expe-
rience. National- Silverware Co., 720
Chestnut St., Philadelphia.
WANTED—Man to represent lawyer's
calendar during spare time, in all sec-
tions of the United States. Palmare's
law and Collection Assocition, Rich-
mond, Va.
♦ ♦♦♦♦♦♦ +++++++*+**+++++*++**+
•WANT ADS:
The prce is ONE CENT A WORD Hr the Fret insertlon and half a -
▼ sent a word far each consecutive insertion. Ne ad. taken for lees .
+ than 15 cents.
+++++++*+++4*+4 +++++++4++++*
chief justice;
justice; F.
justice.
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The Austin Statesman. (Austin, Tex.), Vol. 32, Ed. 1 Tuesday, July 7, 1903, newspaper, July 7, 1903; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1448414/m1/7/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; .