NEW TRIAL GRANTED
IN "GRAVEYARD CASE"
Judge Nash Makes Verbal Re-
of the defendants' attorneys in the case of W. S. Ferguson et
al vs. J. T. Elliott, for a new trial, was granted this morning
by Judge Nash of the fourteenth district court. The suit is known
as the "graveyard case," and was tried several days
ago and resulted in a verdict for the plaintiffs, which practically
prohibited the defendants from burying bodies on the plot of
ground known as "Evergreen cemetery," east of Dallas,
on the Orphans' Home road. Judge Nash, in granting a new trial,
made a verbal order restraining the defendants from burying bodies
in the cemetery until after the finding in the second trial.
- Saturday, May 9,
1903, Dallas Daily Times Herald, p. 5, col. 6-7.
- o o o -
W. S. Ferguson et al
J. T. Elliott et al
Saturday June 10th, 1905
Entered as of June 8th, 1905.
District Court Minutes, Volume 19, pp. 302-304, Dallas Public
Library, 7th floor.
This day came the parties by their
attorneys and announced ready for trial and thereupon came on
to be heard defendants' demurrers, general and special, to plaintiffs'
2nd amended original petition filed herein May 30th 1905, and
argument of counsel being heard, it is the opinion of the Court
that the law is for the plaintiffs on all said demurrers; it
is therefore considered by the Court, and it is so ordered, adjudged
and decreed, that said defendants, said demurrers, general and
special, be, and the same are hereby overruled, to which defendant
excepted. Thereupon said cause came on to be heard on the merits
and the evidence being heard, the court submitted to the jury
special issues as follows:
1st Will the rain water falling
upon the cemetery lands percolate through the ground underlying
the cemetery to such extent as to reach the waters of any of
the wells or springs of any of the plaintiffs mentioned in plaintiffs'
petition? To this question, you will answer "yes" or
2nd If you shall answer "yes"
to the foregoing question, then would the rain water so reaching
such wells or springs, or any of them carry any disease producing
germs, or any product of decomposition from any dead body or
bodies, which might be interred on said cemetery interred in
such manner as you may believe from the evidence the same would
To this you will answer "yes" or "no."
3rd If you shall answer yes to
the last preceding question, then would the water of said wells
or springs, or any of them, be so contaminated by said germs
or products of decomposition as to be dangerous to the life or
health of person using the water of such well or wells, or springs,
To this you will answer "yes" or "no."
Thereupon came a jury of good and
lawful men to-wit: W. F. Barcus and eleven others, who, being
duly empanelled and sworn upon their oaths, returned into open
court the following special verdict to wit:
We the jury find the following
answers to the special issues submitted to us by the court: To
the 1st issue, we answer: yes: To the 2nd issue, we answer :
yes : To the 3rd issue, we answer : yes:
W. F. Barcus, Foreman.
Therefore, came on to be heard
plaintiffs' motion to render judgment for plaintiffs upon such
special verdict, which being heard, it is considered by the court,
and it is so ordered, adjudged and decreed, that the said plaintiffs,
W. T. Ferguson, J. S. Turner, E. E. Fort, Sam Skillen, Joe Lawther,
W. O. Watts, joined by his wife, M. C. Watts, Geo. Shaffner,
Richard Froelich, L. O. Beeman, F. Wokaty, Jno. M. McCoy, Jerome
Kearby and Orris Littlejohn, do have the writ of injunction prayed
for against said defendants; as to the land herein after described,
and that said defendants, J. E. Elliott, Ed C. Smith and Dave
Smith, each, and all of them their attorneys, agents, employes
and servants, be, and they are hereby, perpetually enjoined and
forever restrained from using as a cemetery, and from interring
dead bodies therein; from selling lots therein for burial purposes,
the land, or any part thereof, lying and being situated in the
County of Dallas and State of Texas, and particularly described
as follows: Viz: Beginning at a point in the West line of the
land described in plaintiff's petition as the Cemetery, 235 feet
north of the centre of the Texas & Pacific Railway track;
Thence North along said west line 1100 feet, a stake; Thence
East 1400 feet, a stake; Thence South 1400 feet, a stake; Thence
West to the T. & P. Ry right of way; Thence Westerly along
said right of way to the S. E. corner of the Hebrew Cemetery;
Thence North along the East line of said Hebrew Cemetery about
185 feet to its N. E. corner; Thence west along the North line
of said Hebrew Cemetery about 185 feet to its N. W. corner; Thence
westerly about 1232 feet to the place of beginning, Excepting
out of the aforedescribed field notes what is known as the "Beeman
It is further considered by the
Court and so ordered, adjudged and decreed, that said plaintiffs
do have and recover of and from said defendants, all their costs
in this behalf expended and that they have their execution for
the same. And that the officers of Court have their execution
against each party hereto for the costs incurred by them.