Volume 255 — South Western Reporter

<p>1. Garnishment <&wkey;87 — An application for garnishment against a trust estate, alleging the residence of the trustees, is sufficient.</p> <p>An application for a writ of garnishment against a trust estate and the trustees individually, which alleges the residences of the trustees who are the persons on whom service should he had is sufficient though the trust estate is an association which might have a residence in the same manner as a corporation under Rev. St. art. 6149.</p> <p>2. Garnishment <&wkey;97 — Garnishee named in application cannot complain, in absence of injury, that writ also includes others.</p> <p>Where an application for a writ of garnishment was against a trust estate alone, and the writ granted was against the trust estate and its trustees, the trust estate not being prejudiced cannot complain.</p> <p>3. Garnishment <&wkey;97 — That writ defective in part does not avoid the writ as a whole.</p> <p>. Where a writ of garnishment calls for an answer as to the indebtedness of the garnishee to defendant, the fact that, through clerical error, that part of the writ requiring an answer as to effects in' the hands of the garnishee was ineffective, does not avoid the writ as a whole.</p> <p>4. Garnishment <&wkey;96 — Officer’s return of service on trustees individually held sufficient; “individually”; “giving.”</p> <p>An officer’s return of service that he delivered writ of garnishment by giving trustees individually a true copy of the writ of garnishment shows sufficient service against a trust estate, being equivalent to a declaration that the writ was delivered to each trustee in person; “individually” meaning separately and personally, and “giving” meaning the same as delivering.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Individually.]</p> <p>5. Evidence <&wkey;43(l)— Court takes judicial notice in garnishment proceedings of proceedings in the main cause.</p> <p>Garnishment proceedings being ancillary to the proceedings in the principal suit, judicial notice is taken of the proceedings in the cause to which it is ancillary.</p> <p>6. Garnishment &wkey;>l77 — Judgment may be taken against a garnishee, though time for appeal has not expired.</p> <p>Under Rev. St. art. 282, providing that a judgment may be taken against a garnishee any time after judgment has been rendered against defendant, the fact that the judgment against defendant is not final, the time within which an appeal might be taken or a writ of error sued out not having elapsed, is immaterial.</p> <p>—.Tj'nf other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Death &wkey;>27 — Action for exemplary damages for death occasioned by gross negligence of employer not barred by award under Workmen’s Compensation Act.</p> <p>That compensation for the death of an em-ployé has been made under the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91) did not bar a suit for exemplary damages, where the death was occasioned by the gross negligence of the employer under article 5246 — 7, which is based on Const, art. 16, § 26, providing that every person, corporation or company that may commit homicide through willful act or omission, or gross neglect, shall be responsible in exemplary damages to the surviving husband, widow, or heirs, notwithstanding the claim of defendant that exemplary damages could not be recovered where plaintiffs were not entitled to actual damages.</p> <p>2. Death t§=»76 — Evidence insufficient to show gross negligence of'employer in failing to use steam or air for ventilating place of work.</p> <p>In an. action by a widow and heirs to recover exemplary damages under Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 7 for death of decedent through gross negligence of his employer, decedent losing his life because of an explosion in one of defendant’s receiving houses due to a spark from a defective electric light cord, evidence held not to disclose gross negligence in defendant’s failure to use steam or air for ventilation purposes.</p> <p>3. Death <&wkey;76 — -Evidence insufficient to show gross negligence of employer in furnishing defective light cord causing explosion.</p> <p>In an action by a widow and heirs to recover exemplary- damages under Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 7 for death of decedent through gross negligence of his employer, decedent losing his life because of an explosion in one of defendant’s receiving houses due to a spark from a defective electric light cord, evidence held not to disclose gross negligence on the part of decedent’s employer in furnishing such defective light cord; it appearing that another employé had procured it without defendant’s knowledge.</p> <p>4. Trial <&wkey;>-l 39(1) — -Whether evidence raises issue for jury is question for court.</p> <p>Whether there is any evidence raising an issue of fact for the jury is for the court.</p> <p>5. Trial &wkey;>!39( I) — Peremptory instruction for defendant proper where evidence insufficient to authorize finding for plaintiff.</p> <p>When the evidence is not sufficient in law to authorize a finding for plaintiff, the jury should be peremptorily instructed to find for-defendant.</p> <p><5^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Error from District Court, Limestone County; A. M. Blackmon, Judge.</p> <p>Suit by J. J. Suttle against Marion Kitchen and another, who filed a replevy bond. Judgment for plaintiff against defendants and E. S. White and others, as sureties, and the latter bring error.</p>

Minor, Judge. Action by Benjamin Rodriguez against the -Etna Bife Insurance Company, to set aside an award made by the State Industrial Accident Board. Award set aside, judgment rendered for plaintiff, and defendant appeals.

L. Davenport, Judge. Action by Mrs. L. A. Ramsower, for self and as surviving community administratrix, and others, against the Texas Company. Judgment for plaifltiffs, and defendant appeals.

<p>Appeal from District Court, Grimes County; Carl T. Harper, Judge.</p> <p>Action by Charlie Haynes and another against E. Cockerell. From an adverse judgment, defendant appeals.</p>

R. Pearson, Judge. Suit by the Wichita Falls Electric Company, in the name of W. H. Painter, against the city of Bowie. Judgment for plaintiff, and defendant appeals. It appears from the record that the suit was commenced and prosecuted by the Wichita FaUs Electric Company, a corporation, in appellee Painter’s name.

E. Monteith, Judge. Suit by the Farmers’ Life Insurance Company against J. F. Wolters and another, executor and executrix of the will of Jonathan Lane, deceased, and others, in which Walter Lane intervened. From a judgment. for plaintiff, defendant executors, the American Surety Company of New York, and the intervener appeal.

<p>Appeal from District Court, Dallam County ; Reese Tatum, Judge.</p> <p>Trespass to try title by W. W. Floyd against H. J. Hammond. Judgment for plaintiff, and defendant appeals.</p>

Suit by ET. C. Couchman and others against the Texas Interurban Railway Company and others. Judgment for plaintiffs granting an injunction, and defendants appeal.

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Suit by Henry Bauderer against Otto Witte. From an order overruling motion to dissolve temporary injunction, defendant appeals.</p>