Page images
PDF
EPUB

denying a motion to dissolve a temporary in- [ 15 days from the granting of such order. junction previously granted. The order granting the injunction was made on September 18, 1918, and was still in

J. Webb Stollenwerck, of Hillsboro, for appellant.

Collins, Morrow & Morrow, of Hillsboro, for appellees.

Appeal from District Court, Hill County; force on October 30th, when appellant's moHorton B. Porter, Judge. tion to dissolve was acted upon and overruled Suit by A. B. Lamb and others against Bill by the court, and the court recited in its Jowell. From a judgment overruling a mo- | judgment that the injunction would "continue tion to dissolve a temporary injunction in force pending trial,” which did not have granted in vacation, defendant appeals. Ap- the effect of beginning a new and original peal dismissed. injunction from which an appeal would not at that time lie. The time for taking an appeal from the original granting of the injunction had long since expired. The action of the court on October 30th in no way modified or changed the injunction. Appellees attack this appeal for the want of jurisdiction in this court to entertain it. The appeal was not prosecuted in time, which leaves this court without jurisdiction; hence the ap peal will have to be dismissed. The appeal cannot be sustained on any other ground, as the judgment was on a motion to dissolve, which motion was overruled, and no appeal is allowed from such a judgment. Vernon's Sayles' R. S., art. 4644; Powdrill

RAINEY, C. J. This appeal is from a judgment overruling a motion to dissolve a temporary injunction granted in vacation.

On the 18th day of September, 1918, Hon. Horton B. Porter, district judge of Hill county, in chambers, granted a temporary injunction against appellant, at the instance of appellees, restraining appellant from planting a certain tract of land or any part thereof in grain or other crops which will mature dur-v. Powdrill, 134 S. W. 272. ing the year 1919, etc., until further order of the court. The writ was issued and made returnable September 18, 1918, and returned the same day. Appellant filed a motion to dissolve and dismiss.

On October 30, 1918, in vacation the motion to dissolve the temporary injunction was heard, and same was overruled. At the same time, the parties having appeared, the court heard the pleadings, the evidence and argument of counsel, and rendered judgment for plaintiffs, overruling said motion to dissolve, and that said injunction continue in "Iorce pending trial." Appellant excepted and gave notice of appeal.

On November 7, 1918, appellant filed his appeal bond, reciting:

"Whereas, in the above styled and numbered cause, pending in the district court of Hill county, Tex., the court in vacation, to wit, on the 30th day of October, A. D. 1918, granted an injunction in favor of plaintiff and against the defendants, restraining said defendant from sowing grain on the 140 acres of land described in plaintiffs' petition, and all costs, said injunction being a temporary injunction, to which action of the court the said Bill Jowell then and

Having no jurisdiction to review and determine this case, the appeal is dismissed.

CHEW et al. v. DE WARE et al. (No. 1903.)
(Court of Civil Appeals of Texas. Texarkana,
April 12, 1918. Rehearing Denied
May 2, 1918.)

1. BOUNDARIES

3(6)-Corners.

An established original corner must control. 2. BOUNDARIES 3(6) SURVEYOR'S FOOT

STEPS.

The identification on the ground of the footsteps of the surveyor determines the true bound

ary.

3. WATERS AND WATER COURSES 111 LAKES-MEANDER LINES.

Where original boundary followed lake meander line and waters receded imperceptibly, the water's edge was the boundary.

Appeal from District Court, Marion County; J. A. Ward, Judge.

Action by J. M. De Ware and others

there excepted and gave notice of appeal," etc. --and further proceeded in proper form. [1, 2] The bond purports to be one for an against W. D. Chew and others. Judgment appeal from the order granting the injunc-on verdict for plaintiffs, and defendants appeal. Affirmed. tion as though made October 30, 1918, when the injunction was granted on the 18th day of September, and the appeal in this case was attempted to be perfected on November 7, which is more than a month after the granting of the injunction. The statute requires that an appeal from the granting of a temporary injunction must be taken within

The republic of Texas issued a patent on January 25, 1842, to Robert Potter for 22 labors of land situated in what is now Marion county on Ferry or Caddo Lake. The west boundary line of the survey calls for the lake. Since the time of the location of the survey, there has been, it appears, recession

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of waters of the lake. And, upon the con- and at the present time; and (4) that where tention that there is vacant public school the waters of the lake bordered the Robert land or domain between the west boundary | Potter survey the recession of the waters line of the Robert Potter survey and the was so slow and gradual as to be imperceptiwater's edge of the lake, the state of Texas ble at the time to the eye. issued to W. D. Chew two patents; one patent of June, 1910, calling for 344 acres; and one patent of November, 1913, calling for 178 acres.

The appellees, owners under the Robert Potter survey, brought the suit in trespass to try title against the appellants, claiming under the W. D. Chew patents. It was agreed in writing between the parties that the appellees owned and had the record title to all land claimed by them to all of sections 12, 13, and 24 of and under the Potter sur

vey, except so much thereof as may extend beyond the west boundary line of the Potter survey. And the controlling issue in the case, as made in the trial, is the location of the west boundary line of the Robert Potter survey. If the present water's edge of the lake is the west boundary line of the Robert Potter survey, then the appellees are entitled to judgment for the land sued for.

The case was tried on special issues. The jury made findings of fact that: (1) The surveyor who originally located and surveyed the Robert Potter survey actually located and marked on the ground the northwest corner of the survey at a post oak marked R. P. near the water's edge of Ferry or Caddo Lake; and (2) intended at the time of the original survey to make the meanders and water's edge of the lake the west boundary line of the survey; and (3) the west boundary line was surveyed and established, but unmarked, on the ground by the original surveyor. The jury made the further findings that: (1) The waters of the Ferry or Caddo Lake since the location of the Robert Potter survey slowly and gradually receded for about two years; (2) that the northwest corner of the Robert Potter survey was ten yards nearer the water's edge of the lake at the time of the original location than at the present time; (3) that the waters of the lake were eight feet higher at the time of the location of the survey than since the recession

On the verdict of the jury the court entered judgment for the plaintiffs. The findings of fact made by the jury, having support in the evidence, are here adopted.

Schluter & Singleton, of Jefferson, for appellants.

T. D. Rowell, of Jefferson, T. W. Davidson, of Marshall, and W. L. Grogan, of Shreveport, La., for appellees.

LEVY, J. (after stating the facts as above).

[1-3] The original locating surveyor of the Robert Potter survey, as found by the jury, actually established on the ground and markthe survey at a post oak tree marked "R. P." near the water's edge of Ferry or Caddo Lake. An established original corner must govern and control. Accordingly, the other calls in the patent for the west line will be followed from the established northwest corner. These calls are for the meanders of the lake, and, as found by the jury, the original locating surveyor of the Robert Potter survey intended to make the water's edge and the meanders of Ferry or Caddo Lake the west boundary line of the survey. The identification on the ground of the footsteps of the surveyor determines the true boundary. S. W. 177. Therefore the west boundary line Hughes v. State, 57 Tex. Civ. App. 306, 123 of the Robert Potter survey will in this case follow the meanders of the lake; for, as found by the jury, the receding of the waters of the lake on the west boundary line of the survey was slow and gradual, and where the change is gradual and imperceptible the boundaries extend to the waters. 5 Cyc. 904; Tiedeman on Real Property, 489; 1 R. C. L. p. 230.

ed for identification the northwest corner of

We have carefully examined all the assignments in the case, and conclude that no error exists that warrants a reversal of the judgment.

Affirmed.

MEMORANDUM DECISIONS

ORANGE LUMBER CO. v. ELLIS. (No. | missed for want of jurisdiction. C. D. Russell, 3-2546.) (Commission of Appeals of Texas, of Plainview, for plaintiff in error. K. Ewing Section A. Jan. 15, 1919.) Error to Court of Bain, of Floydada, for defendant in error. Civil Appeals of First Supreme Judicial District. Action by J. S. Ellis against the Orange Lumber Company. A judgment for plaintiff was reversed by the Court of Civil Appeals (153 S. W. 1180), and upon an affirmance of the judgment of the trial court on rehearing, defendant brings error. Affirmed, as recommended by the Commission of Appeals. Adams & Huggins, of Orange, and Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error. Holland & Holland, of Orange, for defendant in

error.

SONFIELD, P. J. Suit by J. S. Ellis against the Orange Lumber Company for personal injuries sustained by him while in the employ of defendant. A trial by jury resulted in a verdict and judgment in favor of plaintiff. On appeal, the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause, 153 S. W. 1180. Pending motions for rehearing by both parties, the Court of Civil Appeals certified certain questions to the Supreme Court, among others, whether, upon the facts presented in the certificate, there was error in refusing a requested charge, to the effect that under the undisputed evidence the plaintiff assumed the risk of the accident, which resulted in his injury, and instructing the jury to return a verdict for the defendant; or did the facts so stated present the issue of assumed risk, which should have been submitted to the jury, as was done? The court answered that, upon the facts certified, the issue was properly submitted to the jury. 105 Tex. 363, 150 S. W. 582. Based upon the answer to this and the other questions certified, the Court of Civil Appeals granted the motion of appellee (plaintiff) for rehearing and affirmed the judgment of the trial court. A writ of error was granted by the Supreme Court; the court being inclined to the opinion that upon the record disclosed, which was regarded as somewhat different from the facts certified, the plaintiff assumed the risk. Upon a careful examination of the record, we find no facts disclosed which, under the principles of law announced by the Supreme Court in its answer to the questions certified, would lead to the conclusion that the plaintiff, as a matter of law, assumed the risk. We therefore recommend that the judgment of the Court of Civil Appeals, affirming that of the district court be affirmed.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.

[blocks in formation]

TAYLOR, J. This action is in the form of trespass to try title to the S. W. 14 of survey No. 96, block B-1, B. S. & F. certificate 1/770, in Briscoe county. The real purpose of the suit, however, is to determine the true location of the south boundary line of the plaintiff's one-fourth of the section. 162 S. W. 916. It is a case of boundary purely, and comes under the rule stated in Cox v. Finks, 91 Tex. 318, 43 S. W. 1. The writ was sought on the ground that the Court of Civil Appeals erroneously declared the substantive law of the case. The writ was granted in April, 1914. In November following the Supreme Court decided the case of Cole v. Cobolini, 106 Tex. 472, 170 S. W. 1036, holding that the act of March 28, 1913 (Laws 33d Leg. p. 107), amending article 1521, Revised Statutes 1911, defining the jurisdiction over the Court of Civil Appeals where such court has erroneously declared "the substantive law of the case" (paragraph 6), did not repeal article 1591, Revised Statutes 1911, which made judgments of the Courts of Civil Appeals final in certain cases, including cases of boundary. The court, in concluding the opinion, stated that during the prior term, in applying the act of 1913, the court acted under the view that its effect was to confer upon the Supreme Court jurisdiction over questions of substantive law in cases made final in the Court of Civil Appeals by the terms of article 1591, and added that in a few cases writs of error had been granted in such cases, which, under the ruling announced, would be dismissed. This is doubtless one of the cases referred to. We are of opinion that the Supreme Court has no jurisdiction of the case, and recommend its dismissal.

PHILLIPS, C. J. Case dismissed for want of jurisdiction, as recommended by the Commission. Judgment will be so entered.

HUGHES v. STATE. (No. 5231.) (Court of Criminal Appeals of Texas. Dec. 4, 1918.) Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. R. J. Hughes was convicted of aggravated assault, and he appeals. Affirmed. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. The appellant is under sentence of confinement in the county jail for 12 months for the offense of aggravated assault in a conviction on an indictment for an assault with intent to rape. The record is without bills of exception or statement of facts, and presents no question for review. The judgment, is therefore aflirmed.

RAY v. STATE. (No. 5203.) (Court of Criminal Appeals of Texas. Nov. 20, 1918. Rehearing Denied Jan. 15, 1919.) Appeal from District Court, Bexar County; W. S. Anderson, Judge. J. T. Ray was convicted of murder, and

he appeals. Affirmed. Carlos Bee, of San An- | find that no brief has been filed by appellants in tonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

this court, and it appearing, upon inspection of the pleadings and the findings of fact made by the trial court, that the judgment, as rendered, was such as was authorized by the pleadings and supported by the court's findings of fact, and there being no fundamental error appearing upon the face of the record, it is the opinion of this court that the judgment of the lower court should be affirmed; and it will be so ordered.

DAVIDSON, P. J. Appellant was convicted of murder; the jury assessing his punishment at 25 years in the penitentiary. This is a fact case, without bills of exception, either to the introduction or rejection of testimony or to the charges of the court. The evidence is fully sufficient to support the verdict of the jury. Appellant's theory of his case was self-defense. The jury, however, disregarded his view of it and found him guilty. We deem it unnecessary KNOX v. B. K. KING & SON. (No. 396.) to review the facts. They would be of no prac- (Court of Civil Appeals of Texas. Beaumont. tical utility to the bar and bench, and there- Dec. 19, 1918.) Appeal from Nacogdoches fore the facts are not collated. The judgment | County Court; J. F. Perritte, Judge. Proceedwill be affirmed. ings between Hiram Knox and B. K. King & Son. From a judgment for B. K. King & Son, Knox appeals. Affirmed. J. W. Minton, of Hemphill, for appellant. V. E. Middlebrook, of Nacogdoches, for appellees.

BARBEE et al. v. PRUETT et al.

(No.

410.) (Court of Civil Appeals of Texas. Beaumont. Dec. 19, 1918.) Appeal from District Court, Liberty County; J. L. Maury, Judge. Suit by Ed Pruett and others against Will L. Barbee and others. Judgment for plaintiffs, and defendants appeal. Affirmed. E. B. Pickett, Jr., of Liberty, and W. D. Gordon and Thos. J. Baten, both of Beaumont, for appellants. D. J. Harrison and H. E. Marshall, both of Liberty, for appellees.

BROOKE, J. After a careful examination of the record in this case, together with the briefs of counsel for the respective parties, we have come to the conclusion that there is no reversible error shown, and the cause should therefore be affirmed.

of Civil Appeals of Texas.
WEIL V. HATTON et al. (No. 308.) (Court
Beaumont. Nov.

HIGHTOWER, C. J. This is an appeal from a judgment of the district court of Liberty coun-21, 1918.) Appeal from District Court, Orange ty in a suit brought by the appellee against the County; W. R. Blackshear, Judge. Action beappellants, praying the cancellation of a certain lease contract executed by appellees in favor of tween Felix Weil and O. M. Hatton and others. appellants covering certain lands owned by ap-firmed. Bisland & Bruce, of Orange, for appelFrom the judgment rendered, Weil appeals. Afpellee in Liberty county. The principal ground upon which the lease was sought to be canceled lant. Holland & Holland, of Orange, for appelwas that the same had been procured by fraud and deceit practiced by the appellant Will L. Barbee upon the appellee Pruett. The trial was before the court without a jury, and judgment was rendered canceling the lease as prayed, and upon request of appellants the trial court prepared and filed findings of fact and conclusions of law. Upon an inspection of the record, we

lee.

BROOKE, J. In this case no briefs have been filed by either party, and we have, after carefully examining the record, found no error requiring a reversal. The case appears to be controlled by Reyes v. Kingman Texas Implement Company, 188 S. W. 450. The judgment of the trial court is therefore affirmed.

END OF CASES IN VOL. 207

« EelmineJätka »