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ment in favor of plaintiff defendants appeal. Affirmed.
W. Gregg, for appellants.
JAMES, C. J. The suit originated in the justice's court, where G. H. Day, J. H. Thrasher, W. H. Harris, and W. W. Ward were sued by Robert G. Johnson, as county judge of Tarrant county, on four convict bonds, the principal appearing in the bonds to have been G. H. Day. Appeals were taken to the county court by Day, where the causes were consolidated and judgment was rendered against defendants. There is no error indicated by the first and second assignments. The suits in the justice's court were brought by Robert G. Johnson, county judge, upon the respective bonds payable to Robert G. Johnson, county judge of Tarrant county. The judgment in the county court was in favor of Robert G. Johnson, for the use and benefit of the county of Tarrant. The suit was not brought by Robert G. Johnson individually, but as county judge, and this sufficiently shows that he sued for the use of the county. Rev. St. art. 683. There is nothing in this record to show that an amendment was made in the county court to plaintiff's pleadings in this respect; but, if it had been there amended to show that he sued for the use of the county, it would not have been material. The judgment was properly rendered in his name for the use of the county. The third assignment, as stated in the brief of appellants, deals with matter not stated in the assignment as given in the record. Affirmed.
DAY et al. v. JOHNSON, County Judge. (No. 723.) 1
(Court of Civil Appeals of Texas. Dec. 18, 1895.)
APPEAL FROM INFERIOR COURTS-JUDGMENT-DE-
1. Since, in actions by the county judge on convict bonds, the bonds show that the actions are brought for the benefit of the county, it is not error, on appeal by defendants to the county court from default judgments, to permit plaintiff to orally plead such fact.
2. In an action on a bond which shows on its face that one defendant is principal and the others sureties it is proper, on default, to enter judgment against the former as principal and the others as sureties.
3. To institute suit on a convict bond the county judge needs no other authority than that conferred by the statute.
Appeal from county court, Tarrant county; Robert G. Johnson, Judge.
Actions by Robert G. Johnson against G. H. Day and others. From judgments of the county court affirming judgments for plaintiff, defendants appeal. Affirmed.
W. Gregg, for appellants.
1 Rehearing denied.
NEILL, J. Suits were filed in the justice's court in Tarrant county by the appellee against G. H. Day, J. H. Thrasher, W. H. Harris, and W. H. Ward on four convict bonds, on which Mr. Day was principal and the other parties sureties, each for a balance of $32.40. In that court judgments by default were rendered in favor of the appellee in the cases against all the defendants exMr. cept Mr. Harris, who was not served. Day alone appealed from the judgments to the county court, where the cases were consolidated. It was apparent from the character of the instruments sued on that the suits were brought for the use and benefit of Tarrant county, and it was not error for the court to permit the plaintiff to orally plead such fact. Upon a breach of the bonds it was the duty of the county judge to institute suit upon them for the use of the county, and he needed no other authority than the statute to do so. The bonds upon their face show that G. H. Day is the principal in each of them, and that the other parties are sureties. Hence judgment was properly entered against Mr. Day as principal and against the other parties as sureties. Affirmed.
FIRST NAT. BANK OF AUSTIN v.
(Court of Civil Appeals of Texas. Jan. 15, 1896.)
MARRIAGE-CUSTOMS OF INDIAN NATION-PLEAD-
1. In an action where the issue was whether plaintiff's father and mother were married at the time of her birth, it appeared that the mother was an Indian, residing with the Creek Nation, in the Indian Territory; that the parents, without having any ceremony performed, agreed to become husband and wife; that they cohabited for a considerable time before and after plaintiff was born, and publicly treated each other as husband and wife; that, according to the customs and usages of the Creeks, the facts recited constituted a valid marriage. Held, that the parents were married.
2. The court may permit amendment of pleadings after the evidence is all in and the opening argument has been made.
3. The probate of a will is a proceeding in rem as to all of the property devised, but as to property not devised heirship cannot be established in such proceeding.
Appeal from district court, Travis county; James H. Robertson, Judge.
Action by Mary Sharpe against the First National Bank of Austin to recover money on deposit. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Rector, Thompson & Rector, for appellant. Walton & Hill, for appellee.
KEY, J. Appellee claims to be the legitimate child and sole heir of W. T. Patterson, deceased, and sues to recover money belonging to said Patterson, and held on deposit by appellant at the time of his death. Appellant admitted in its answer that at the
time of Patterson's death, in June, 1891, he had on deposit with appellant the sum of $2,000; and judgment was rendered against appellant for that amount, with 6 per cent. interest from March 9, 1894, the time the suit was commenced.
It was proven, and is not disputed, that appellee is a daughter and only child of W. T. Patterson; that her mother was an Indian woman, named Alcy; and the only question of fact in the case is whether or not she and Patterson were married at the time appellee was born, which was about the year 1848. At that time, and prior thereto, Mrs. Alcy, as she was called, was the surviving widow of a man named Atkins, who, it appears, went to California, and died. Mrs. Alcy remained in the Creek Nation, in the Indian Territory; and, though there is no positive proof of such an agreement, there is evidence tending to support the conclusion that W. T. Patterson and Mrs. Alcy, without having any marriage ceremony performed, agreed to become husband and wife, and the evidence is quite clear that they lived and cohabited with each other for a considerable time before and after appellee was born, and publicly recognized and treated each other as husband and wife; that during that time, if Patterson did not entirely support Alcy and her child, he contributed largely to that end; and for years afterwards he acknowledged appellee to be his child, and contributed to her support. It was also shown that at the time in question the Creek Indians had no written laws concerning marriage, and that, according to their customs and usages, the facts above recited would show a valid marriage. Such being the case, although there are some circumstances in evidence tending to show that it was not Patterson's intention to, and that he did not believe that he had, legally married the woman, Alcy, we cannot say that the court's finding on this issue is not correct.
After the evidence had been introduced, and while the defendant's counsel was replying to the opening argument of the plaintiff's counsel, and contending that the plaintiff could not recover, because she had not pleaded any customs and laws of the Creek Nation concerning marriage, the trial court allowed the plaintiff, over the defendant's objection, to amend her petition in that respect; and that ruling is assigned as error. withstanding the verbiage of the statute, and some decisions tending to support the objection that it was too late to amend, under the latest case by our supreme court that has come to our knowledge, as well as some former decisions, it was within the discretion of the court to allow the amendment; and the record does not disclose any abuse of discretion. Telegraph Co. v. Bowen, 84 Tex. 477, 19 S. W. 554. The fifth section of appellant's answer reads thus: "Further specially answering herein, the defendant says that at the time of the death of W. T. Patter
son, on the on deposit with defendant the sum of two thousand dollars, and no more; that it refused to pay the same to any one until it had been established who were the heirs of said Patterson; that in two suits in the district court of Travis county, Texas, it was determined who the heirs of said W. T. Patterson were, to wit, in cause No. 10,393, G. M. Patterson vs. Francis Patterson, and in cause No. 11,078, Estate of Wm. T. Patterson, probating the will of said Patterson; that after it was established in said causes who were the heirs of Wm. T. Patterson it paid out said money to the parties so shown to be the heirs of said Patterson, and who are indeed his heirs." Then follows a statement of the sums paid out, and when paid out to each of the parties so found to be his heirs, giving names of each. The district court sustained an exception to so much of this plea as stated to whom and why appellant had paid the $2,000 held by it for Patterson at the time of his death; and this ruling is assailed by appellant. We do not understand counsel for appellant to contend that, because it was proved and decided in the suit between G. M Patterson and Francis Patterson that certain persons were the only heirs of W. T. Patterson, therefore appellee, though not a party to that suit, is estopped from showing the contrary; but the proposition relied on is stated thus in appellant's brief: "The probating of said will of W. T. Patterson was a proceeding in rem, and the finding of the court in said proceeding of who the heirs of W. T. Patterson were is binding and conclusive against all the world." We are not prepared to agree to this proposition in its entirety. It may be conceded that a proceeding to probate a will is a proceeding in rem as to all the property disposed of by the will, but it is not such a proceeding as to property not disposed of by the will, and therefore not involved in the probate proceeding. If the plea had shown that the will of W. T. Patterson had been probated, and that it devised the property here involved to some person other than appellee, it would have presented a sustainable defense. As to property not devised, heirship cannot be established in a proceeding to probate a will. But it is not claimed that the will, or the probate proceedings, had any reference to the subjectmatter of this suit, and therefore we think the plea was properly stricken out. No reversible error has been pointed out, and therefore the judgment will be affirmed. Affirmed.
day of June, 1891, he had
GLASSCOCK v. STRINGER et al. (Court of Civil Appeals of Texas. Jan. 15, 1896.)
JUDGMENT-LIEN ON HOMESTEAD-ALLOWANCE IN LIEU OF EXEMPT PROPERTY-WHO ENTITLED.
1. A duly filed and registered judgment against a homesteader becomes a lien on the
land occupied as a homestead on its being abandoned as such. 32 S. W. 920, reversed. Marks v. Bell (Tex. Civ. App.) 31 S. W. 699, followed.
2. The minor children of a son of a decedent are not entitled to an allowance in lieu of exempt property, where such son's family were not constituents of deceased's family at the time of his death.
On motion for rehearing. Granted.
COLLARD, J. We adhere to our former opinion in this case in all things except what was said concerning the effect of the registration of the Glasscock judgment abstract in suit No. 988, for $383.80, and the quantity of the land constituting homestead.
1. We recede in part from what was said as to the effect of the registration of abstract of the judgment mentioned. The registra tion and the index was a compliance with the statute, and it took effect as a judgment lien under the statute as soon as certain of the property was abandoned as a homestead by John Stringer and family. When the ab stract was registered and indexed, the property was all homestead, and no lien could then attach; but a lien attached on a part of the land as soon as it lost its homestead character by abandonment. This was the holding of the court of civil appeals for the Fifth judicial district at Dallas in the case of Marks v. Bell, 31 S. W. 701, and the reasoning of the court in that case is entirely satisfactory to us. The lien in such case is distinguished from the lien by levy of an attachment or execution upon property which is homestead, and afterwards abandoned as such; as in such cases the lien, if it exists at all, must take effect at the time of and by the levy, whereas in the case at bar, the record being in accordance with the statute to create a lien, the lien is created when the property becomes subject to it, and not until then, and hence is not affected by any homestead right. The lien arises as it would if the record were made on the day of abandonment of homestead. It should not be held that the lien failed because the record was prematurely made. Then we must hold that the lien of the judgment was good upon and applied to that part of the homestead abandoned, and that plaintiff below is entitled to judgment foreclosing his lien by the judgment in suit No. 988 for $383.80 against defendant Peck and all the defendants, Peck's deed of trust and purchase of the property being subse quent to the abandonment of part of the homestead; and for this purpose the debt due by the judgment must be established.
2. There is no escape from the conclusion that part of the property had been abandoned as a homestead in the lifetime of John Stringer, deceased. The testimony of John Stringer, Jr., and of Mrs. Clara D. Stringer, is the most favorable of all the witnesses in support of the lower court's conclusions that the Peck property was not abandoned as a homestead at the time of his deed of trust and purchase;
and, if our conclusion should be based upon their testimony alone, we would be compelled to hold that some of the Peck purchase was not homestead. John Stringer says that he was the only child that lived at his father's house at the time of his death; that they had been living at the same house 22 years at the time of his father's death. "The property left by my father at the time of his death of outlot 35, Div. E consisted of two dwelling houses,-a brick dwelling and a frame cottage. A fence separates them part of the way, and the wall of the frame house is in the place of the fence pa.t of the way. My father moved to the frame cottage in 1885, where he resided to his death, in May, 1888. The brick house was rented out when it could be done, but the cistern was always used by my father's family, as was also the horse lot and cistern house or lumber room. My mother and myself have continued to occupy the frame house since his death. I do not remember the names of all the tenants that occupied the brick house, nor how long they lived there, nor how much rent they paid I never claimed the brick house as a part of my homestead. My father first moved there in September, 1871, and lived there until March, 1872, when we moved out in the country. He then moved back to the brick dwelling in the latter part of 1873, and lived there until 1877, when we moved to the Avenue Hotel, where he lived until 1882. He then returned and lived there until he removed to the frame cottage in 1885, where he resided until his death, in May, 1888." Mrs. Clara D Stringer testified that John Stringer, Sr., was her husband, and that they lived together for 50 years, until his death, on the 5th day of May, 1888. 5th day of May, 1888. "At the time of my husband's death, myself, John Stringer, Taylor Stringer, and Mrs. Maynard composed the family. My son John Stringer was the only child who remained with the family at my husband's death, and he was then 43 years old. There are two houses on the premises in question, but only one cistern and one stable. The frame house was built in 1885. We lived in the brick dwelling in 1882, and moved to the frame house-my present place of abode-in the latter pari of December, 1835. We rented out the brick dwelling and yard, but continued to use the cistern and lumber room, as shown by the plat." We find the facts stated by John and Mrs. Stringer are true. We refer to the plat as contained in the record, pages 80 and 81. The horse lot is on the west end of the lot, 22.7 feet by 70 feet in dimensions; that is, 22.7 feet off part of the west end of the 93 by 138 feet. The stable is on the 23 by 138 feet, on which is the frame dwelling; and a part of the lot is also on the 23 by 138 feet. The facts are as stated in the original opinion, except as herein modified.
Now, construing the evidence most forcibly in favor of homestead, we conclude that the land, 23 feet by 138 feet, on which is the
frame dwelling, the horse lot, the cistern, and the cistern house or lumber room, constituted the homestead of the family of John Stringer and family at the time of his death, and that all the rest of the 138 by 93 feet was abandoned as a homestead at the time of his death. The 70 by 138 feet, on which is the frame dwelling, the yard, except the horse lot, the cistern and cistern house, had been abandoned at the time of his death as a homestead, and was not a part of the homestead, and the same is subject to the lien of plaintiff Glasscock's judgment in suit No. 988, which lien should be foreclosed in this suit, and sale ordered as prayed for in petition.
3. We do not think the minor children of Taylor Stringer are entitled to any allowance in lieu of exempt property, as allowed by the court below, out of the estate of John Stringer, deceased. Taylor Stringer and his family were not constituents of the family of John Stringer, deceased. None of them lived with John Stringer. Taylor Stringer's family was independent and separate from that of his father. The minor children of Taylor Stringer could only have been allowed an amount in lieu of exemption out of the estate of their father, and we hold that the lien of the plaintiff must be established as before stated, without regard to such allowance. The fee of $25 awarded to J. W. Brady, Esq., guardian ad litem of the minor children of Taylor Stringer, deceased, and taxed as costs in the case, will be allowed to stand. Such a fee is authorized by the statute when minors are made defendarts in a suit, and a guardian ad litem is appointed to defend the suit for them, which fee is to be taxed as costs of the suit. Rev. St art. 1211.
As judgment will be here rendered for plaintiff below as stated in the foregoing, such judgment as should have been rendered by the court below,-all the costs of the suit in the lower court as well as of this appeal will be taxed against defendants, including the compensation allowed the guardian ad litem. The judgment of the lower court is reversed, and it is ordered that judgment be here rendered for the appellant, Glasscock, in accordance with this opinion. Reversed, reformed, and rendered.
W. B. Abney and Thompson & Thompson, for appellant. Mathews & Browning, for appellees.
KEY, J. This is an action of trespass to try title, involving adverse claims to a tract of land. Appellant claims through a sale made under an execution against W. W. Allen. Appellees claim that at the time the levy and sale were made the land was their homestead, and the court below so found, and for that reason rendered judgment for them. Appellant assigns error on this ruling, the contention being that all homestead rights in the land had been abandoned. The property in question is a farm in Lampasas county. It became appellees' homestead in 1882, and they continued to occupy and use it as such until 1890, when they moved to the town of Lampasas, and occupied a house and lot owned by them in said town, until after appellant had the farm levied on and sold in 1893; though the evidence shows that in June before the levy was made in August appellees were preparing to return to the farm, and had two of their minor sons plowing the field preparatory to sowing fall wheat. Among other things, the trial court found as follows: found as follows: "Eighth. I find that in 1890, when defendant left the land in dispute, and moved upon said property in the city of Lampasas, that the purpose of such removal was to educate his children; that he intended to return to the land in dispute within a period of about three years from the time he so left it; that he at no time intended to permanently abandon the property, but, on the contrary, during all the time he was absent from the property, he intended to return to it after sending his children to school for said period of three years." This finding is amply supported by testimony, and, in our opinion, is conclusive of the question of homestead. There being no intention to permanently abandon this property as a homestead, but, on the contrary, the intention being to return, and use it as such, in about three years, there was no abandonment of the homestead rights therein, although in the meantime appellees occupied as a residence or temporary home other property belonging to them. And this holding does not result in allowing them two homesteads. The farm being the homestead, the town residence was not homestead.
It was proper to allow appellees to testify that when they left the land they intended to return to it. Nor did the court err in overruling the motion for a new trial. Conceding proper diligence to secure the evidence
of F. J. Harris, his testimony, to the effect that W. W Allen, while living in town, offered to sell the farm, would not probably change the result upon another trial. Men often try to sell their homesteads, and such an offer does not change the fact of homestead. We adopt the conclusions of fact and law filed by the court below, and affirm the judgment. Affirmed.
CITY OF BELTON v. BAYLOR FEMALE COLLEGE.
(Court of Civil Appeals of Texas. Jan. 15, 1896.)
MUNICIPAL CORPORATIONS-ACTION TO ABATE NUISANCE-WHEN MAINTAINED-EVIDENCE
1. A city can maintain an action to abate a nuisance caused by the emptying of a private sewer into a creek running through the city, though it has no interest in the land or the creek in question. City of Llano v. County of Llano, 23 S. W. 1008, 5 Tex. Civ. App. 133, and City of Belton v. Central Hotel Co. (Tex. Civ. App.) 33 S. W. 297, followed.
2. In an action by a city to abate a nuisance caused by the emptying of a private sewer into a creek running through the city, witnesses for plaintiff testified that the discharge when the water was low caused the refuse matter to collect and generate offensive odors. Witnesses for defendant testified that they did not discover any of the bad odors complained of, and that they went to the place to discover if there were any offensive odors. It did not appear that the time to which they referred was the time testified to by plaintiff's witnesses. Held, that the evidence did not clearly establish the fact that no nuisance existed.
3. In an action by a city to abate a nuisance caused by the emptying of a private sewer into a creek, it is no defense that the city authorities authorized defendant to construct the sewer, and empty it into such creek.
Appeal from district court, Bell county; W. A. Blackburn, Judge.
Action by the city of Belton against the Baylor Female College to abate a nuisance. From a judgment for defendant, plaintiff appeals. Reversed.
James Boyd and W. K. Sanders, for appellant. Sanders & Harris, for appellee.
FISHER, C. J. This action is by the city of Belton against the appellee, to abate a nuisance arising from the discharge of offensive matter conducted in a sewer from the Baylor Female College into Nolan's creek, a natural water course running through the city of Belton, and to restrain the appellee in the continuation of the nuisance, on the ground that the odors arising from the fecal and refuse matter render the atmosphere to many inhabitants of said city unhealthy, and that the same is a public and private nuisance. The judgment below was that the plaintiff take nothing, and that the defendant go hence with its costs, and that the injunction be dissolved, and plaintiff's bill be dismissed.
The trial court, in its conclusions of law,
as a reason for its judgment, among other things, stated that it found against the appellant, because it did not appear that the plaintiff had any interest in the land or water course in question. In view of the facts, if the matter complained of constitutes a nuisance, it is of such a public character which the city may abate or restrain. This was so decided in City of Llano v. County of Llano, 5 Tex. Civ. App. 133, 23 S. W. 1008, and in City of Belton v. Central Hotel Co. (decided by this court December 18, 1895) 33 S. W. 297, a case involving the same character of nuisance as is complained of in this case. The court was in error in its ruling in this respect.
The court also based its judgment upon other reasons, which were to the effect that the matters complained of did not in fact constitute a nuisance. If the evidence upon which the court based this ruling clearly established the fact found, we could support the judgment of the court upon this conclusion, although it erred on the other branch of the case, in holding that the nuisance was not of such a character that the city may abate or restrain it. The testimony of a number of witnesses on behalf of appellant establishes the fact that the discharge of the waste water and refuse matter from the college building into the creek, when the water was low in it, caused the refuse matter to collect, and generate offensive and unhealthy odors. The testimony of the witnesses in behalf of appellee that tends to establish a different state of facts is of a negative character to some extent. Those witnesses testify that they did not discover any of the bad odors complained of, and that they approached the place where the refuse matter was collected in order to detect
if there were any offensive odors. It does not appear that the time in which they endeavored to ascertain if such odors existed was when the water was at a low stage in the creek, or was at the same time testified about by the appellant's witnesses. The witnesses of both sides may have stated the truth, for the bad odors may have existed at the time testified about by the complainant's witnesses, and may not have existed at the time appellee's witnesses failed to discover the odors. Hence we conclude that the evidence upon this issue offered by appellee was not of such a conclusive or certain character as would authorize us to rest the judg ment of the court below upon it.
The court below admitted the testimony of certain witnesses to the effect that the city authorities had authorized the appellee to construct the sewer, and place the refuse matter complained of into Nolan's creek. If the matters complained of create a nuisance, the appellee cannot justify under a pretended authority from the officers of the city. The city itself cannot create a nuisance that affects the health of its inhabitants, and, if such is the case, it cannot authorize another