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WRITS OF ERROR
WERE DESIED BY THE
SUPREME COURT OF TEXAS
IN TAE FOLLOWING CASES IN THE
COURT OF CIVIL APPEALS
PRIOR TO MARCH 13, 1896.
(This list includes only the writs of error denied in which no opinions were filed. All others are
published in full in the Southwestern Reporters.]
Kolp v. Specht, 33 S. W. 714. Adams v. Kaufman, 32 S. W'. 712.
Leach v Leach, 33 S. W. 703. Blum v. Brown, 33 S. W. 145.
Longiey v. W'arren, 33 S. W. 304. Chaison v. Beauchamp, 34 S. W. 303.
Montague County v. Meadows, 31 S. W. 694. City of Houston T. Hutchins, two cases, 33 S. W. Morris v. Davis, 31 S. W. 850. 269.
Mutual Reserve Fund Life Ass'n v. Tolbert, 33 Hartman v. Huntington, 32 S. W. 362.
S. W. 295.
State v. Harvey, 33 S. W. 885.
Blooded-Stock Ass'n v. Kit, 31 S. W. 1080. Leon & H. Blum Land Co. r. Rogers, 32 S. W. Texas & P. Ry. Co. v. Bowlin, 32 S. W. 918.
Texas & P Ry. Co. v. Brown. 33 S. W. 146. 713. Mexia v. Lewis, 34 S. W. 1.38.
Wagner v Marple, 31 S. W. 691. Morrison v. Stauffer, 32 S. W'. 722.
Western Union Tel. Co. v. Boots, 31 S. W. 825. Olive v. Sabine & E. T. Ry. Co., 33 S. W. 139. Whitehill v. Shaw, 33 S. W. 886.
Wichita Val. Ry. Co. v. Peery, 32 S. W. 333.
Williams r. Howard, 31 S. W. 835.
Blume v. Rice, 32 S. W. 1036.
Brown v. Cawlfield, 30 S. W. 131.
Cervenka v. Dyches, 32 S. W. 316.
Chessher v. Clamp, 30 S. W. 466. Wel er v McComb, 30 S. W. 822.
City Water Co. v. State, 33 S. W. 239.
Davis v. Taylor, 33 S. W. 543.
Edmonds v. Iron ('ity Nat. Bank, 32 S. W.
1067 Alamo Fire Ins. Co. v. Brooks, 32 S. W. 711. Ewing v. Miles, 33 S. W. 235. Bean v. Warden, 31 S. W. 831.
Fielding v. White, 32 S. W. 10.54; 333 S. W. 7733. Blum v. Houston & T. C. Ry. Co., 31 S. W.326. Fire Ass'n of Philadelphia v. Laning, 31 S. W. Cabell y. Holloway, 31 S. W. 201.
681. Cameron v. First Nat. Bank of Decatur, 34 S. First Vat. Bank of Austin v. Sharpe, 33 S. W. W. 178.
676. Carmichael v. Ballard, 31 S. W. 80.
First Nat. Bank of Gatesville v. Wings, 32 S. W. Cunningham . Holt, 33 S. W. 981.
178. Cushing v. B. C. Evans Co., 33 S. W. 703. Gulf, C. & S. F. Ry. Co. v. Calvert, 32 S. W. Dunham v. Randall & Chambers Co., 32 S. W. 246. 720.
Gulf, C. & S. F. Ry. Co. v. Wright, 30 S. W. Ft. Worth & R. G. Ry, Co. v. Lindsey, 32 S. V. 294. 714.
Hilliard v. White, 31 S. W. 553. Galbraith v Howard, 32 S. W. 803.
Hirshfeld v. Brown, 30 S. W. 962. Gulf, C. & S. F. Ry. Co. v. Jagoe, 32 S. W. 717. Houston & T. C. R. Co. v. Guisar, 29 S. W. 946. Gulf, C. & S. F. Ry. Co. v. Jagoe, 32 S. W. Houston & T. C. R. Co. F. Poras, 29 S. W. 945. 1061.
Houston & T. C. R. Co. v. Smith, 33 S. W. 896. Hayes v. Caril, 31 S. W. 313.
International & G. N. R. Co. v. Tabor, 33 S. W. J. A. Kemp Grocery Co. v. Sawyer, 33 S. W. 894. 1031.
Kaufman County r. McGaughey, 32 S. W. 927; Jennings r. Willer, 32 S. W'. 24, 375.
33 S W'. 1020. Kern 7. Reynolds, 32 S. W. 711.
Krueger v. Wolf, 33 S. W. 663.
WRITS OF ERROR FROM SUPREME COURT.
Marx v Baker, 29 S. W. 908.
Perkiewiez y First Nat. Bank of Oklahoma, 33 Missouri, K. & T. Ry. Co. v. Huff, 32 S. W. 551. S. W. 674. Missouri, K. & T. Ry. Co. v. Sanders, 33 S. W. Phenix Ins. Co. of Brooklyn v. Levy, 33 S. W. 215
995. Missouri, K. & T. Ry. Co. of Texas v. Kirkland, Rock Island Plow Co. v. Hill, 32 S. W. 242. 32 S. W. 588.
San Antonio & A. P. Ry. Co. v. Keller, 32 S. Moses v. Hansford, 32 S. W. 1050.
W. 817. Nichols v. State, 32 S. W. 452.
Saunders v. Kempner, 32 S. W. 585. Puckett v. Williams, 32 S. W. 364.
Sullivan v. Crouch, 32 S. W. 144. State v. Hutchings, 32 S. W. 315.
Talbott & Sons v. Planters' Oil Co., 33 S. W. White v. Sterzing, 32 S. W. 909.
745. White v. Waco Bldg. Ass'n, 31 S. W. 58.
Tempel v. Dodge, 31 S. W. 686.
West v. El Campo Land Co., 32 S. W. 424. FOURTH DISTRICT.
White Sewing Mach. Co. v. Hicks, 33 S. W. 137. Atchison, T. & S. F. Ry. Co. v. Click, 32 s. w. Yoakum v. Kelly, 30 S. W. 836. 226.
Allison v. Pitkin, 33 S. W. 293.
Bailey v. Boydstun, 33 S. W. 281. Building & Loan Ass'n of Dakota v. Logan, 33 Canadian-American Mortgage & Trust Co. v. S. W 1088.
McCarty, 34 S. W. 306. City of San Antonio v. Micklejohn, 33 S. W. 735. Cumpston v. Texas & P. Ry. Co., 33 S. W. 737. Consolidated Kansas City Smelting & Refining Dillingham v. Blake, 32 S. W. 77. Co. v. Conring, 33 S. W. 547.
Gulf, C. & S. F. Ry. Co. v. Ward, 34 S. W. 328. Cruger v. Sullivan, 32 S. W. 448.
Hanover F..e Ins. Co. v. National Exchange Diamond State Iron Co. v. San Antonio & A. P.
Bank, 34 S. W. 333. Ry. Co., 33 S. W. 987.
Investor's Mortg. Sec. Co. v. Loyd. 33 S. W. 750. Fant v. Wickes, 32 S. W. 126.
Kimberly v. Morris, 31 S. W. 309. Ferguson v. Johnson, 33 S. W. 138.
King v. Texas State Fair & Dallas Exposition Galveston, H. & S. A. Ry. Co. v. Goodwin, 32 Ass'n, 34 S. W. 305. S. W. 78.5.
Knowles v. Ott, 34 S. W. 295. Galveston, H. & S. A. Ry. Co. v. Waldo, 32 S. Lancaster v. Riley, 34 S. W. 320. W. 783.
Marshall Nat. Bank v. O'Neal, 34 S. W. 344. Galveston, H. & S. A. Ry. Co. v. White, 32 s. Missouri, K. & T. Ry. Co. of Texas v. Gordon, W. 186.
33 S. W681. Galveston, H. & S. A. Ry. Co. v. Worthy, 32 s. Neeley v. Case, 32 S. W. 785. W. 557.
Phoenix Assur. Co. of London, England, v. CoffGeers v. Scott, 33 S. W. 587.
man, 32 S. W. 810. Hall v. La Salle County, 32 S. W. 433.
Producers' Marble Co. v. Bergen, 31 S. W. 39. Hammond y. Tarver, 31 S. W. 841.
Rogers v. East Line Lumber Co., 33 S. W. 312. Hickman v. Hoffinan, 33 S. W. 257.
Russell v. Campbell, 32 S. W. 858. Hodo v Mexican Nat. R. Co., 31 S. W. 708. St. Louis S. W. Ry. Co. v. Huffman, 32 S. W. International & G. N. R. Co. v. Sein, 33 S. W. 30. 558.
Simpkins v. Searcy, 32 S. W. 849. Jones v. Galveston, H. & S. A. Ry. Co., 31 S. Stooksberry v. Swann, 34 S. W. 369. W. 706.
Strain v. Walton, 34 S. W. 293. Liverpool & L. & G. Ins. Co. v. Brown, 33 S. W. Sulphur Lumber Co. v. Kelley, 30 S. W. 696. 996.
Texas & P. Ry. Co. v. Beckworth, 32 S. W. 809. Loshte v. Blum, 30 S. W. 925.
Texas & P. Ry. Co. v. McLane, 32 S. W. 776. Mariposa Land & Cattle Co. v. Silliman, 32 s. Western Union Tel. Ço. v. Guest, 33 S. W. 281. W.813.
Western Union Tel. Co. v. Hale, 32 S. W. 814. New York & T. Land Co. v. Gardner, 32 S. W. Williams v. Noland, 32 S. W. 328. 786.
Williams v. Pollard, 28 S. W. 1020. Noel y, City of San Antonio, 33 S. W. 263. Willis' Ex'rs v. Moore, 33 S. W. 691.
Yarbrough v. Johnson, 34 S. W. 310. +
SOUTHWESTERN REPORTER. .
of the probate judge in ard for said Mercer OVERTON et al. v. OVERTON et al. county, and was by said probate court duly (Supreme Court of Missouri, Division No. 1.
proved and probated, and declared to be the
last will and testament of the said Moses Dec. 11, 1895.) SUPREME COURT-JURISDICTION — PLEADING – AC
Overton. That he left, surviving, children TION TO SET ASIDE A DEED-PETITION
and grandchildren, the plaintiffs and defend-SUFFICIENCY.
ants, his only heirs, as hereinafter set out. 1. An action to set aside a deed of trust to That the plaintiffs Enoch Overton, Albert land, on the ground of fraud, involves title to Overton, Isaac Overton, and the defendant real estate, within the meaning of the constitu
James Overton, are the only sons, surviving, tion, defining the jurisdiction of the supreme court.
of the said Moses Overton, deceased. That 2. Though a pleading must be liberally con- the defendant Charles Overton is a grandson strued (Rev. St. 1889, § 2074), such rule does
of the said Moses Overton, being the only not dispense with the necessity of stating, directly or inferentially, the facts on which the
child of Alexander Overton, a deceased son of pleader depends to secure the object of his the said Moses Overton. That the defendpleading.
ants Robert Overton and Nancy Curtis are 3. In an action to set aside a trust deed of
grandchildren of the said Moses Overton, bea person, since deceased, on the ground of fraud, where the petition alleges that certain
ing the only children of Joseph Overton, deof the plaintiffs are deceased's heirs, and that ceased, a son of the said Moses Overton. deceased left a last will, which has been duly That plaintiffs Mary A. Wayman, Susan J. probated, but does not give the terms of the
Young, and Martha A. Frakes are the daughwill, nor state its effect in respect to its disposition of the land which was the subject-matter
ters of the said Moses Overton, deceased. of the deed, nor allege that such plaintiffs have That defendants Nancy Curtis and Isaac Curany interest in deceased's real estate under the
tis are husband and wife. That plaintiffs will, it is fatally defective.
Stephen Wayman and Mary A. Wayman are Appeal from circuit court, Mercer county; | husband and wife. That plaintiffs Albert Paris C. Stepp, Judge.
Young and Susan J. Young are husband and Action by Enoch Overton and others against wife. That plaintiffs Marion Frakes and Randolph Overton and others to set aside a Martha A. Frakes are husband and wife. trust deed on the ground of fraud. From a That Joel H. Shelly is the executor with the judgment sustaining a demurrer to the peti- will annexed of the said Moses Overton, detion, plaintiffs appeal. Affirmed.
ceased, and is now acting as such, and has in The petition and demurrer, mentioned in the his possession the personal assets of deceased, opinion, are as follows:
including the six hundred dollars hereinafter Petition: “Enoch Overton, Albert Overton, set out. That the said Joel H. Shelly was, on Isaac Overton, Mary A. Wayman, Stephen the
day of 1891, by the probate Wayman, Susan J. Young, Albert Young, Mar- court of Mercer county, duly appointed extha A. Frakes, Marion Frakes, and Joel H. ecutor of the last will and testament of the Shelly, Executor of Moses Overton, Deceased, said Moses Overton, deceased, gave bond as with Will Annexed, Appellants, against Ran- such, was duly qualified as such, and has ever dolph Overton, James Overton, Isaac Curtis, since that time, and now is, acting as such Nancy Curtis, Robert Overton, Charles Over- executor. That the defendant James Overton ton, and John C. Casteel, Mortgagee, Re- is a son and an heir of the said Moses Overspondents. Plaintiffs, for their second amend- ton, and refuses to be made party plaintiff ed petition, state that, on the 22d day of herein, and therefore is made a defendant in Rarch, 1891, one Moses Overton, at Mercer this case. That the defendants Robert Overcounty, Missouri, departed this life. That he, ton, Nancy Curtis, and Charles Overton, as in his lifetime, made and published his last well as Isaac Curtis, refuse to be made parties will and testament, which said will was duly plaintiff herein, and are therefore made parexecuted and declared to be by him his last ties defendant in this suit. That defendant will and testament, and which will was, after Randolph Overton is a son of defendant James his death, duly filed for probate in the office Overton. That, on the 230 day of December,
1890, and for a long time prior thereto, the said Moses Overton was the owner in fee simple of the following described real estate, situate in Mercer county, Missouri, to wit: The southwest quarter of the southwest quarter, and ten acres off the south side of the southeast quarter of the southwest quarter, of section No. three (3), and all that part of the northwest quarter of the southeast quarter of the northeast quarter of section (4) four lying east of Grand river, and ten acres in the northeast corner of the northeast quarter of the northeast quarter of section (9) nine, all in township No. sixty-five (65), of range No. twenty-four (24), in all ninety-one acres, which said real estate plaintiffs allege is, and was at the time aforesaid, of the value of two thousand dollars. That, on the said 230 day of December, 1890, the said Moses Overton, who was then of the age of eighty-four years, resided with the defendants James Overton and Randolph Overton.
Overton. That the said Moses Overton, at the time last aforesaid, and for a long time prior thereto, and from the said 23d day of December, 1890, until the time of his death, to wit, March 22, 1891, was, by reason of old age, mental imbecility, and physical debility, so diseased in body and in mind as to be totally incompetent and incapacitated to transact any business whatever, and for the causes aforesaid was unable to know or understand the value of his property, or to make an intelligent disposition thereof. That, on the said 23d day of December, 1890, the defendants Randolph Overton and James Overton, well knowing the premises, and well knowing the mental imbecility of the said Moses Overton, as aforesaid, and intending and contriving to cheat, wrong, and defraud the said Moses Overton and these plaintiffs out of the real estate hereinbefore described, while the said Moses Overton was temporarily residing with them, did persuade, induce, and cause the said Moses Overton, for the sum of six hundred dollars, to convey said real estate to the defendant Randolph Overton, which conveyance is recorded in Book 25, page 191, in the office of the recorder of deeds in and for Mercer county. That said real estate was of the value of two thousand dollars, which defendants well knew. That the said Moses Overton was, at the time of the execution of said conveyance, by reason of the physical inability and mental imbecility aforesaid, utterly incompetent to make said sale, transact said business, or understand the value of said real estate, or to know the conseguences of said act, all of which defendants at the time well knew; and, well knowing the premises, as aforesaid, and with the intent to cheat, wrong, and defraud the said Moses Overton and these plaintiffs, did willfully, knowingly, and fraudulently persuade, induce, and cause the said Moses Overton to execute the deed aforesaid. That, in order to procure the six hundred dollars aforesaid, to pay the purchase price of said real estate, said Randolph Overton executed a deed of trust to
said real estate to the defendant John C. Casteel, to secure him, the said Casteel, in the sum of six hundred dollars, which trust deed was executed on the 14th day of January, 1891, and is recorded in the office of the recorder of deeds in and for Mercer county, at Book 2, page 13. That plaintiffs bring into court and tender to the said Casteel, mortgagee as aforesaid, the said sum of six hundred dollars, with the interest thereon to time of trial. That the said Moses Overton, in his lifetime, demanded of defendants that they reconvey to him said real estate, at the same time offering to return to defendants the said sum of six hundred dollars, the purchase price thereof, which the defendants then and there refused to do or perform, and still refuse to do or perform. That, after the death of the said Moses Overton, these plaintiffs demanded of defendants that they convey said real estate to the said Moses Overton, his heirs or assigns, and at the same time offered to return to defendants said sum of six hundred dollars, the purchase price of said real estate, as aforesaid, with all the interest thereon, which the defendants then and there refused to do. Plaintiffs therefore pray that the said deed from the said Moses Overton to the defendant Randolph Overton be set aside and held for naught, that the trust deed from the said Randolph Overton to the said John C. Casteel be set aside and held for naught, and that the said Casteel be required to receive the said sum of six hundred dollars, with the interest thereon, tendered as aforesaid, and that all the interest of the said Randolph Overton and John C. Casteel be vested in the heirs of the said Moses Overton, and for other and proper relief."
Demurrer: “Now comes the defendant Randolph Overton, and demurs to the fourth amended petition in this cause for the following reasons: First. Because there is a defect of parties plaintiff in this: The petition alleges that Moses Overton, deceased, under whom plaintiffs claim title to the real estate in controversy, left a last will, which has been duly probated, and that plaintiff Joel H. Shelly is the executor of said will; but the petition fails to show that said Joel H. Shelly, as such executor or otherwise, has any interest in said real estate, or that said real estate is mentioned in or disposed of by said will, or that said Joel H. Shelly has legal capacity to try this suit. Second. Because the petition does not state facts sufficient to constitute a cause of action, and because it does not show that the other plaintiffs or defendants have any just interest with the said Joel H. Shelly, or any other interest. Third. Because the petition shows that the parties in interest have not united therein to set aside said deed, and that sereral of them are opposed to setting it aside, and that several of the said parties in interest, and heirs of said Moses Overton, de ceased, are opposed to this suit and to setting aside deed, and that plaintiffs have no authority to maintain this suit. Fourth. Be