M0.) MEMORANDUM DECISIONS. Summers, for appellant. Edward C. Crow, GANTT, J. On the 3d day of January, 1900, STATE v. WALKER. (Supreme Court of Missouri, Division No. 2. Feb. 3, 1903.) Appeal from circuit court, Livingston county; J. W. Alexander, Judge. Ernest Walker was convicted of robbery, and he appeals. Affirmed. Joe Barton and P. D. Kitt, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State. GANTT, J. At the regular May term, 1901, of the Livingston circuit court, the defendant was indicted for robbery of John P. Cox. The indictment is drawn under section 1893, Rev. St. 1899, and properly charges robbery in the first degree. The jury convicted the defendant, and assessed his punishment at five years in the penitentiary. The defendant was sentenced in accordance with the verdict at the May term, 1901, and leave was given him to file a bill of exceptions by the first day of the September term, and appeal was granted to this court. No bill of exceptions was filed, and the cause is here on the record proper alone. As already said, the indictment was sufficient, and all the other steps were taken in No error appearing, the due or orderly course. the judgment is affirmed. All concur. STATE ex rel. COLUMBIA BREWING ASS'N et al. v. EBY, Judge. (Supreme Court of Missouri. Dec. 10, 1902.) In banc. Proceedings in prohibition by the state, on the relation of the Columbia Brewing Company and others, against David H. Eby, judge of the Tenth judicial circuit. Provisional rule made absolute. Tapley & Fitzgerrell and E. W. Major, for relators. Pearson & Pearson, J. W. Jump, and J. D. Hostetter, for respondent. SHERWOOD, J. In all essential features, E. P. Gates, circuit court, Jackson county; MARSHALL, J. These cases are in all es- STATE ex rel. ST. LOUIS BREWING ASS'N et al. v. EBY, Judge. (Supreme Court of Missouri. Dec. 10, 1902.) In banc. Proceedings in prohibition by the state, on the relation of the St. Louis Brewing Association and others, against David H. Eby, judge of the Tenth judicial circuit. Provisional rule made absolute. Tapley & Fitzgerrell and E. W. Major, for relators. Pearson & Pearson, J. W. Jump, and J. D. Hostetter, for respondent. SHERWOOD, J. This case is similar in all essential features to the case of State ex rel. Anheuser-Busch Brewing Association et al. v. (just decided) David H. Eby, Judge, etc. 71 S. W. 52; and, for like reasons given in that case, the provisional rule in this case is made absolute. All concur, as marked in the case above mentioned. STATE ex rel. WM. J. LEMP BREWING ASS'N et al. v. EBY, Judge. (Supreme Court of Missouri. Dec. 10, 1902.) In banc. Proceedings in prohibition by the state, on the relation of the Wm. J. Lemp Brewing Company and others, against David H. Eby, judge of the Tenth judicial circuit. Provisional rule made absolute. Tapley & Fitzgerrell and E. W. Major, for relators. Pearson & Pearson, J. W. Jump, and J. D. Hostetter, for respondent. SHERWOOD, J. Presenting, as this case does, similar facts and features to those presented in State ex rel. Anheuser-Busch Brewing Association against the same respondent (just decided) 71 S. W. 52, the provisional rule in this case, as in that, will be made absolute. All concur, in the same way as in the opinion in the Anheuser-Busch Brewing Association Case. JOHNSON V. ALLEN. (Court of Appeals at Kansas City, Mo. Jan. 5, 1903.) Appeal from circuit court, Caldwell county; J. W. Alexander, Judge. Action by John E. Johnson against Thomas A. Allen. Judgment for Affirmed. defendant, and plaintiff appeals. Crosby Johnson, for appellant. C. A. Loomis and J. M. Davis, for respondent. ELLISON, J. This case involves a different defendant as tenant, and a larger lot of corn; but in all material respects it is like that of Johnson v. Cook (decided at this term) 70 S. W. 526. We concede to plaintiff that he brought the suit against the party in possession, so that there need be no controversy over the question made at the trial as to Ben. Aubrey's possession. On the authority of the case against Cook, we affirm the judgment. All concur. BETTS v. JOHNSON et al. (Supreme Court of Texas. Jan. 19, 1903.) Application to file petition for mandamus, on relation of W. H. Betts, against G. W. Johnson and others. Application suspended. Hill, Dabney & Carlton, for relators. GAINES, C. J. We are inclined to think that we have no power to issue a writ of mandamus against a state board of medical examiners, and therefore defer action upon the motion to file the petition for mandamus until counsel for relator have the opportunity to present an argument in support of the proposition that this court has jurisdiction of the case. PEOPLES v. STATE. (Court of Criminal Appeals of Texas. Jan 28, 1903.) Appeal from district court, Dallas county; Charles F. Clint, Judge. Josephine Peoples was convicted of crime, and appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State. HENDERSON, J. Appellant was convicted of theft from the person, and the punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal. There is no bill of exceptions in the record. Appellant in motion for new trial complains of the instructions of the court. We have examined the charge and find no error therein. We have also examined the testimony in the case, and in our opinion it amply supports the verdict of the jury. The judgment is affirmed. TRAVINA v. STATE. (Court of Criminal Appeals of Texas. Jan. 14, 1903.) Appeal from Dallas county court; Ed. S. Lauderdale, Judge. Porter Travina was convicted of malicious mischief. and appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State. HENDERSON, J. Appellant was convicted of malicious mischief, to wit, for unlawfully throwing stones into a certain schoolhouse, and his punishment assessed at a fine of $10 and 10 days' confinement in the county jail; hence this appeal. Appellant contends that he should not have been convicted, inasmuch as the testimony shows that in throwing the stones he acted in self-defense, and consequently was justified, if, in throwing the stones at prosecutor, he struck the schoolhouse. We have examined the record, and in our opinion it does not show, or tend to show, that appellant acted in selfdefense. There being no error in the record, the judgment is affirmed. BROWN et al. v. REYES et al.* (Court of Civil Appeals of Texas. Dec. 3, 1902.) Appeal from district court, Williamson county; R. L. Penn, Judge. Action by Ramon Reyes against Frank Brown, H. Fenn, and others. From a judgment in favor of plaintiff, defendants appeal; defendant H. Fenn being made appellée with plaintiff. Affirmed. Makemson & Lord and Robertson & Goldstein, for appellants. John W. Parker, for appellees. FISHER, C. J. This action was brought by Ramon Reyes, plaintiff in the court below, to recover damages from the appellants, Frank Brown, F. W. Brown, Peter Schramm, W. McGarry, and H. Fenn, appellees, who were originally joined in the suit with Julius A. Kruger, John Decker, and the San Antonio Brewing Association as defendants in the court below, for injuries inflicted upou plaintiff's hands and wrists, alleged to have resulted from the carelessness and negligence of the defendants. The suit was dismissed as to the defendants the San Antonio Brewing Association, Julius A. Kruger, and John Decker. The defendant H. *Rehearing denied December 24, 1902, and writ of error denied by supreme court January 29, 1903. Fenn refused to prosecute an appeal, and is made appellee with plaintiff below. Plaintiff alleged in his petition that on the 13th day of February, 1900, the defendants were the owners and proprietors of a plant for making brick, situated about 11⁄2 miles southwest from the town of Taylor, in Williamson county, Tex.; that they used therein a machine known as the "brick press"; that, as forming parts of said machine, there were what is known as "plungers," "fillers," and "pits"; that the pits were of the dimensions of a brick; that the plungers were the appliances which bore upon the clay in the pits, compressing the same into bricks; that the fillers were the appliances used for carrying the clay and depositing it into the pits; that the plungers were raised and lowered by working a lever or brake; that on the day of the injury the defendant McGarry was intrusted by his codefendants with the management and control of said press and the persons working thereat, and that he had charge of said lever and worked the same in raising and lowering the plungers; that, if said McGarry was not a proprietor and owner, then he sustained the relation of vice principal to the proprietors and owners; that defendant Fenn was intrusted by his codefendants with the general control, management, and superintendence of the business; that, if he was not a proprietor and owner, as alleged, then he sustained the relation of vice principal to the proprietors and owners; that plaintiff was on the 13th day of February, 1900, in the employ of defendants, and was charged with the duty of working at said press, and one, among others, of his duties, was to clean the said plungers, and that it was necessary to clean them frequently, and while so doing they had to be kept at perfect rest, and the safety of the men charged with the performance of this duty demanded that the said plungers be not lowered while the work of cleaning was being done; that on said date, while plaintiff was engaged in cleaning the plungers, the same being raised, the defendant Fenn, knowing the perilous position of plaintiff, carelessly and negligently caused defendant McGarry to lower said plungers; that defendant McGarry, who was in full view of plaintiff, knowing the peril ous position of plaintiff, and without any signal from plaintiff, lowered said plungers and caught plaintiff's hands while he was cleaning said plungers, crushing and mangling the same, so that his right hand had to be amputated above the wrist, and all of his left hand had to be amputated, except his thumb and forefinger.to his actual damage $10,000. The defendants answered by general denial, and specially that the injuries of the plaintiff were caused by plaintiff's carelessness and negligence in attempting to clean said plungers in the short period of time they were at rest; that the danger in doing so was apparent and well known to plaintiff,-and specially alleged that plaintiff was employed to remove the pressed bricks from the brick press; that it was not the duty of plaintiff to clean said plungers at any time; that plaintiff, in attempting to clean said plungers, was acting outside of the line of his duty and employment, and contrary to express or ders; that by the exercise of ordinary care plaintiff's injuries would not have occurred, and that he was injured by his own carelessness and negligence; and they averred that the defendant McGarry, as soon as he observed the dangerous position of plaintiff's hand, immediately applied the brake and attempted to stop the motion of said plungers. Defendants further specially answered that on the date of plaintiff's said injury the defendant F. W. Brown was the exclusive owner and proprietor of the brick plant described in plaintiff's petition, and that the defendant H. Fenn had the exclusive superintendence, management, and control of the operation of the same, and the employment and direction of the hands working thereat. Defendants further specially answered that the plaintiff and the defendant W. McGarry, at the time of plaintiff's said injuries, were fellow servants, and, if plaintiff was injured as alleged, his principal would not be liable therefor. A trial was had before a jury, and verdict rendered January 15, 1902, for the plaintiff for $2,000, upon which judgment was rendered. Judgment below was rendered against defendants F. W. Brown, Frank Brown, II. Fenn, W. McGarry, and Peter Schramm. Defendant Fenn is not appealing. Appellants' assignments of errors complain of the verdict and judgment of the trial court upon the grounds: (1) That the evidence does not show that any of the defendants against whom judgment was rendered, except F. W. Brown, were interested in the brick-making plant at the time that the plaintiff was injured. (2) That the plaintiff was guilty of contributory negligence in attempting to clean the plungers of the brick press after the press had been set in motion. (3) That the evidence does not show that the defendant McGarry was guilty of negligence in starting the brick press in question at the time and under the circumstances alleged, and that neither he nor his codefendants were guilty of negligence in causing the plaintiff's injuries. The inference to be drawn from the evidence in the record authorizes the conclusion that none of these assignments is well taken. The evidence showing the connection of some of the appellants as owners of the brick machine is somewhat meager, but we cannot say that the verdict and judgment upon this issue are without evidence to support them; and, in conclusion, we are of the opinion that the evidence warrants a finding to the effect that the material allegations in plaintiff's petition have been proven. We find no error in the record, and the judgment is affirmed. CITY OF AUSTIN v. CAHILL. (Court of Civil Appeals of Texas. Nov. 26, 1902.) Appeal from district court, Travis county; F. G. Morris, Judge. Action by James C. Cahill against the city of Austin. Judgment for plaintiff, and defendant appeals. Affirmed. V. L. Brooks, for appellant. Gardner Ruggles, for appellee. FISHER, C. J. There is no controversy about the facts, and we find them as stated in the record. This case is controlled by the decision of this court in the case of the City of Austin v. Jules F. Valle (No. 2,868) 71 S. W. 414. We find no error in the record, and the judgment is affirmed. KEY, J., did not participate in the decision of this case. CITY OF AUSTIN v. McKEE.* (Court of Civil Appeals of Texas. Nov. 26, 1902.)_ Appeal from district court, Travis county; F. G. Morris, Judge. Action by Ellen J. McKee against the city of Austin. Judgment for plaintiff, and defendant appeals. Affirmed. V. L. Brooks, for appellant. Gardner Ruggles, for appellee. STREETMAN, J. This is a suit to recover interest, as evidenced by certain coupons, upon bonds issued by the city of Austin. The bonds were of the same character, and the issues involved in the case are precisely the same, as those in No. 2,868,-the City of Austin v. Jules F. Valle (this day decided by this court) 71 S. W. 414; and the opinion in that case is hereby referred to for our reasons in disposing of this case. There being no error in the judgment of the lower court, it is affirmed. KEY, J., did not sit in this case. Rehearing denied December 24, 1902, and writ of error denied by supreme court January 29, 1903. CITY OF AUSTIN v. McKEE.* (Court of Civil Appeals of Texas. Dec. 24, 1902.) Appeal from district court, Travis county; F. G. Morris, Judge. Action by Ellen J. McKee against the city of Austin. Judgment for plaintiff. Defendant appeals. Affirmed. V. L. Brooks, for appellant. Gardner Ruggles, for appellee. STREETMAN, J. The questions raised in this case are precisely the same as in the case of the City of Austin v. Jules F. Valle (decided on a former day of this term) 71 S. W. 414. Finding no error, the judgment of the lower court is affirmed. CITY OF AUSTIN v. PAPIN.† (Court of Civil Appeals of Texas. Nov. 26, 1902.)_ Appeal from district court, Travis county; F. G. Morris, Judge. Action by William B. Papin against the city of Austin. Judgment for plaintiff, and defendant appeals. Affirmed. V. L. Brooks, for appellant. Gardner Ruggles, for appellee. STREETMAN, J. This is a suit to recover interest, as evidenced by certain coupons, upon bonds issued by the city of Austin. The bonds were of the same character, and the issues involved in the case are precisely the same, as those in No. 2,868,-the City of Austin v. Jules F. Valle (this day decided by this court) 71 S. W. 414; and the opinion in that case is hereby referred to for our reasons in disposing of this case. There being no error in the judgment of the lower court, it is affirmed. KEY, J., did not sit in this case. CITY OF AUSTIN v. VALLE.† (Court of Civil Appeals of Texas. Dec. 24, 1902.) Appeal from district court, Travis county; F. G. Morris, Judge. Action by Jules F. Valle against the city of Austin. Judgment for plaintiff. Defendant appeals. Affirmed. V. L. Brooks, for appellant. Gardner Ruggles, for appellee. FISHER, C. J. Reference is made to the record for the facts in the case. The questions raised in this appeal were decided recently by this court in City of Austin v. Valle, 71 S. W. 414. Judgment affirmed. INTERNATIONAL & G. N. R. CO. v. NELSON (Court of Civil Appeals of Texas. Jan. 7, 1903.) Appeal from Williamson county court; Chas. A. Wilcox, Judge. Action by J. W. Nelson against the International & Great Northern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. *Rehearing denied January 21, 1903, and writ of error denied by supreme court January 29, 1903. Rehearing denied January 28, 1903, and writ of error denied by supreme court. Rehearing denied February 4, 1903. Affirmed. S. R. Fisher and N. A. Stedman, for appellant. H. S. Smith and Robertson & Goldstein, for appellee. KEY, J. This is a companion case to I. & G. N. R. R. Co. v. Bohannon (this day decided by this court) 71 S. W. 776; and, for the reason there stated, the judgment in this case will be affirmed. STATE v. HART, District Clerk. (Court of Civil Appeals of Texas. Jan. 7, 1903.) Appeal from district court, Travis county; R. L. Penn, Judge. Action by the state of Texas against James P. Hart, district clerk. Judgment for defendant, and state appeals. Reversed. C. K. Bell, Atty. Gen., for the State. Frank Andrews and Hart & Townes, for appellee. STREETMAN, J. The only question involved in this appeal is decided by the supreme court upon certified question (70 S. W. 947); and, in accordance with that opinion, the judgment of the district court is reversed, and here rendered for appellant. Reversed and rendered. END OF CASES IN VOL. 71. INDEX. ABANDONMENT. Of contract, see "Contracts," § 3. ABATEMENT AND REVIVAL. Judgment as bar to another action, see "Judg- Right of action by or against personal repre- § 1. Another action pending. Where an executor died pending a suit to set- tion. Where an heir, entitled to property, died pend- Where an action for death is brought by trial, though abating the action as to him, does not abate the entire action as to the Death of one of the plaintiffs, in action for § 3. Waiver of grounds of abatement A plea of another action pending held a spe- See "Seduction." ABDUCTION. ABETTORS. Criminal responsibility, see "Criminal Law," ABSTRACTS. ACCIDENT. Accident insurance, see "Insurance," § & ACCOMPLICES. Criminal responsibility, see "Criminal Law," Testimony, see "Criminal Law," § 5. ACCORD AND SATISFACTION. ACCOUNT. Accounting by co-tenant, see "Tenancy in Com- Accounting by executor or administrator, see ACCRUAL. Of right of action, see "Limitation of Actions," ACKNOWLEDGMENT. Operation and effect of admissions as evidence, § 1. Taking and certificate. Certificate of acknowledgment to deed of ACTION. Abatement, see "Abatement and Revival," Commencement within period of limitation, see Constitutional guaranties of remedies, see "Con- Counterclaim, see "Set-Off and Counterclaim." Of record on appeal or writ of error, see "Ap- Limitation by statute, see "Limitation of Ac- ABUTTING OWNERS. Rights in streets in cities, see "Municipal Cor- ACCESSORIES. Criminal responsibility, see "Criminal Law," Co-tenants, see "Partition," § 2; "Tenancy in $ 1 71 S.W.-72 (1137) Common," § 1. |