*1 injunction suit, plaintiff where a suit J. This is the preliminary an parties dissolved, appellant, be writ lees has been right appeal, trial a to recover a tract of his to who do not deemed to have waived damages standing removing not he does land the merits because opinion, firmatively contrary it? In our timber therefrom. demand ought only assignment presumption is rather There of error one by bringing brief, namely, indulged, suit his is based joined, exceptions expiration if bill issue be a trial he demanded continues, unless time fixed an order of the to trial and that his he many extending expressly is it. true the time allowed proceed no found desire to No of error are to be instances dissolved; injunction transcript, required by is Arti- statute. his when further and wish, indicating case, upon 1415, cle Revised Civil Statutes 1895. such duty appearing court to dismiss no fundamental errors petition. we to us if But we are it seems request specific judg- assignments, absence his silence construe dismissal of lay cause, ar- an is affirmed. we ment of the bitrary rule, our in accord with which is not jurisprudence.” system of only [3] The feature HOUSTON, E. T. RY. LACY CO. v. & W. disposition of final that a which indicates the granted et al. controversy is relief intended (Court Appeals Civil of Texas. Texarkana. her cross-action. Mrs. Withers on 22, 1913. On Motion Rehear- Jan. disposed final to hold that feel We do not ing, 1913.) 6, Feb. uncertain is couched decree which Depositions (§ 11Q*) Objections—Sup 1. — it language, the intention porting Evidence. ground deposition, made final, have been An to a it that it was taken party, adverse but a few the addition certain supported 'by competent evi- appealing from a Linden was words. dence, judicially unless the court knows the application judgment injunction facts, since the statement of counsel extrane- objection, original petition, sought ous an is not it an him to would cases, Depositions, [Ed. Note.—For other see denying With this relief. order Dig. Dig. 323-328%; Cent. §§ 110.*] Dec. § jurisdiction, question we do this is a Appeal 548*) 2. and Error —Record- plain beyond inclined feel op Presentation oe Review. Grounds judgment in or meaning the terms of an court’s action in ob- jection was taken without notice to the adverse cannot be ground jurisdiction. it der to assume party conclusion our adhere reviewed, it where ap- final no peal, bill of facts will and the motion that the facts on were based to the court. refused. cases, Appeal [Ed. Note.—For other see Dig. Dig. Error, 548.*] 2433-2449; § Cent. §§ Dec. Depositions 83*) Objections—Form- (§ 3. — GIBSON et al. SWEENEY Statutory Provisions. Appeals (Court of Texas. Texarkana. of Civil deposition, ground An ato 1913.) 16, that party, of Jan. taken on notice to the adverse an and manner Appeal (§ 784*) Error —Record—Suf ex- under ficiency Aepirmance. — press provisions 2289, 1895, of Rev. St. art. of error one Where presented 'by briefed, of ex- is based fore the commencement time, ceptions no filed in cases, Depositions, [Ed. Note.—For other see transcript, as re- are found of error Dig. §§ § Cent. Dec. judg- 1895, quired ment mental error. St. art. Rev. affirmed, in Appeal absence of funda- will be (§ 926*) Objections Error — —Form—Statutory Provisions. contrary, was Appeal of a the absence [Ed. Note.—For other Error, 784.*] § will be Dec. trial, for art. the case was called and hence objec- that, under Rev. an St. Appeal from District Morris the form and manner of tion to properly overruled, presented by a because not ; Turner, Judge. ty P. A. suppress. Viola Gibson Action [Ed. Sweeney judg- and others. From Error, 1279, 2899, 3729, 3730; Sweeney ap- plaintiffs, defendant ment for Dig. 926.*] peals. Affirmed. Instructions—Weight (§ — Evidence. Bolin, Daingerfield, n Henderson & passenger In an action for the death of a Taylor appellant. Lipscomb, Bonham, & a train on the station while instruction towards the Dig. Key-No. Rey’r *For other oases and section Am. NUMBERin Dec. Series & *2 Tex.) HOUSTON, E. & W. T. BY CO. v. LACY found, by track with his not observe the testimony. the One approaching train, near the plaintiff but walked too seeing fall; but, witness testified to him track, by was the and struck very dark, did not at the time know refused, could not was since recover making found, Lacy dead, it was a it was on man. When the of de- the was contributory negligence, ceased body lying and his was near the sacks. mail specified. matter of. under the circumstances The first three of error attack Trial, [Ed. Note.—For other ruling admitting the in in evi- Dig. Dec. 436, 439-441, 446-454), dence the of Mrs. one of § 194.*] the plaintiffs. particular —Instructions—Affirma taking went to the manner and form of the tive PRESENTATION DEFENSE. OE The rule defendant to deposition, presented and should have been contributory negligence defense provided by statute. Bev. St. firmatively upon dependent jury the appear art. 2289. It does not 'by preparation and ’ special charge done, any objection a correct was on was made Trial, Dec. [Ed. within the time statute. There 484, 660, 671, 673, exception transcript. no bills Appellant relies, presenting assign- these ments, exclusively on Shelby from District Nothing ty; Buford, facts. Judge. is there W. C. disclosed that Lacy would indicate error on Action Mrs. C. A. K. part overruling Houston, the ob- East & West Texas jections objections Bailway Company. made. judgment were based From a for facts, concerning a state of plaintiffs, appeals. defendant Affirmed. compelled court would to hear evi- Walker, Center, Carter & T. John Gar- dence; nothing and there is to show that rison, Baker, Botts, Garwood, Parker & any such evidence was adduced or tendered. Houston, appellant. Davis, all of for Davis is no merit in the Davis, Center, for pleadings evidence did negligence charged verdict. The inwas leav- morning J. On the platform Novem- the mail sacks on the and in 28, 1910, o’clock, Baey failing ber at about 3 E. depot lighted. to have the The evi- passen- appellant’s was struck ger killed amply sustains the verdict. The re- Timp- maining assignments train at the town of error are without son, Tex. This merit, suit was filed his widow and are overruled. children, who recovered in the court be- court is af- $2,500 damages. low firmed. Lacy gone The evidence shows that had Behearing. On Motion for occasion, purpose 2] early morning of purchased and had case, again night dark, we have filed ticket. was given all the and the weather cold. For error some reason appeal heated, careful room consideration. was not As be stated, passengers, including fore introduction present invited, permitted, were sit ordinary agent’s exception, ed office until but -the train arrived. When corporated approached, Lacy, train the statement of facts. The with substantially passengers, platform out stated in the fol lowing purpose taking passage. of error: “The court place usually stopped train erred suppress where the defendant’s motion to get depositions passengers station, off on of- O. A. K. at this necessary pass platform depositions, said over a as tak through space en and between said cause and the train introduced in depot building. plaintiff, space in behalf of wall of the evidence crossed had not been particular about 15 On feet wide. defendant and .the company occasion, mail some sacks had had not been left waived time appellant’s agent, . interrogatories; and notice that said agent’s interrogatories plaintiff, the door of were taken tween place and the passengers filing without where the were to board same part defendant, train. was seen to out of the that said grip hand, original interrogatories door, with his start cross were passage at a former term of the board- part upon He was struck the train. defendant said answers to interrogatories sup of the cars he reached the and cross where direct were lying. pressed by court, and, mail sacks were Whether he fell after said direct car, interrogatories sacks and suppressed, over these or was and cross plaintiff’s procured commission, ear and knocked where he was other eases ana section NUMBER Key-No. *For & Am. & Rep’r Series depositions inter- be direct and and had said knowledge rogatories retaken, fore case was called trial. its Co. and over or consent of this deny true, retaking protest, interrogatories this applicability it would of said no notice requiring mo *3 the defend- statute served -was ant, or tion time and the defendant support following agree in- The we think authorities or that Lewis, understand, terrogatories law: 45 view of the Ellis v. Tex. We retaken.” 189; App. foregoing, Civ. 100 S. W. G. & S. are H. that these from the predicated upon Ry. 515, Morris, dep- Briggs, App. assumption Co. v. Tex. Civ. that the 503; Ry. Eacy H. & A. no- S. W. G. S. Co. v. was taken without osition Ry. appellant Co. the 94 Tex. its counsel. When tice supra. offered, counsel urged objection [5, interposed It is 6] stated also that the lant error, give following special refusing erred in in the facts embraced and charge requested appellant: fully “Gentle statement objection. may jury, you facts, men in case basis you have from the should believe evi be conceded that been structed sustained, counsel that E. W. if the facts stated properly to he made known left the office the defendant were true and were they walking court, that left the track with existed in a form towards or if judicial down, ap his proaching train, track, notice and did not observe head authorized the presented in this too near but walked of court does not inform those But the record them. engine cars, was struck us whether or being close to the track facts true. statement too engine ears, facts as basis of of with said or plaintiff came in contact then counsel extraneous you introduction and use are instructed that to the may legally speaking, quite'differ- recover, although you deposition is, believe cannot from evidence, properly presented, compa tend- that ent from evidence upon ny having prove negligent truth of the facts waiting warm, lighted, an ob- In order to sustain he relies. which jection character, permitting of judicially the trial court cart remain that or between the sacks charged know the facts either track and upon legally plaintiffs’ true, subject by competent petition.” informed this as In rule, in- signment, appellant invokes objection; stance court overruled in suits to the accords character, exception separate- bill of in the absence of a defenses af incorporated ly jury. firmatively presented reserved or to the au facts, showing that the facts stated rule which establish thorities right, prepara however, dependent upon basis of properly we must as- to the the defendant tion and correctly charge G., special decided the the court sume correct C. & S. F. question. Shieder, cannot review his We Co. v. fact, determining special are the an issue of unless we R. A. 538. The 28 L. 36 W. charge requested S. legal method, advised, appears of what in this instance really instance, For it is stated facts were. us to be made that think it was re reason we for that contributory to these inter- Mrs. rogatories, It makes fused. quashed preced- negligence, had been at the a matter of argued term; failed with his head towards the track judicial approaching should have taken and was observe proposition walking jured by true as fact. law; track. too near the know, clearly this court to but how is did know shows evidence showing approach those left record for he trial court facts take manifest room with the judicial reasoning notice? The same is taking passage it. Some of wit applicable customarily other facts to all the stated as the walked nesses testified objection. slightly got That he down. with his original conclusion, to our 4] We adhere cars was struck is too near however, is one that drawn fact that from the inference injury manner occurred did. charge. should was no-error discussing suppress, special motion to accordance with reason for detail in a see no the requirements remaining error. the ab contrary, it will be motion for a is overruled. sence
Houston, E. & W. T. Ry. Co. v. Lacy
153 S.W. 414
Tex. App.1913Check TreatmentAI-generated responses must be verified and are not legal advice.