The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-05-12
THE UOUR Ts.
synopsis OF Opinions of Court OF
Appeals.


no Jurisdiction, and that fact is apparent OF
record, this cour, will take cognizance, on
appeal, Of such want of jurisdiction, though
the question was not raised in the cour
below. 4S Texas, 1903, ID. 227; 30 Texas,
1853. In the case before us, which is an
action for tho trial of the right to property
levied on by virtue of an execution, the
property seized and claimed is appraised by
the sheriff at 1857. Our construction OF
section 8, article s, of the constitution, at
former day of ihis term was that if the pro-
vision meant anything the intention could
only have been to make the jurisdiction CT
the district court exclusive and to deprive the
county court OF concurrent jurisdiction in
actions for the trial OF the right to property
where tho amount involved was $500 or
upwards. This construction is borne out by
article 1164 revised statutes. (See Nave
Goddard & Co. vs. Frieberg, Klein IL Co.,
Austin term 1881 Under the last cited
ruling the county court of Falls county hau
no jurisdiction TO hear and determine the
Caso anu its Ju1SHous iEoli "hicn thie aP'
peal is taken i. reversed and the cause re>
msrde3. White, Z. j.
Lerrick V. Wright; appeal from Bexsr,
The condition. OF the bond executed on ap-
peal in this case is that "the said derrick
shall prosecute his appeal to effect, and shall
pay and satisfy the judgment on decree that
may be rendered against him and the obli-
gors in this bond by the court Of appeals"
A bond thus conditioned was held to be in
sutii ;ent in Rad vs.. Fernandez, 81 Tex. $40
The appeal bond being wholly defective the
court has acquired no jurisdiction of the
case and the sppeal is therefore ismissed
White. p. j.
FL. & J.. Q. R. r. Go. VS.. White; error
from Travis. This was an action on the case
for damages occasioDed by the loss and
destruction of certain goods delivered and
received by the appellant, as a common car
rier, for transportation. There was a sworn
account setting forth the items and value OF
the goods claimed to have been lost or
destroyed, which was the basis Of the action.
On the trial it appears that a judgment by
defendant was TAKEN the only evidence
adduced being the sworn account. This
evidence is insufficient to support the iudg-
ment. To entitle party to the benefit of
Article 2266 Revised Statutes, which makes
the sffidavis of the creditor prima facie
evidence of its business and correctness, it
mus. be shown that the action was founded
upon contract. See 81. & T. Q. r. K. Co. VS..
Hays g. Co.. Texas Law Journal, Dec. l,
$780, and g. II, 81 S. A. r. 4. Go. vs.. Nor
ris, Texas Law Journal, March 2. 1881.
Reversed and remsnded. White, P j.
Miller ct al vs. Sappington; appeal from
Bexar county. On appeals from Justices
courts to the county courts the statute pre-
scribes that "the party appealing shall
within ten days after the the rendition of
said judgment file with such justice bond,
with one or more good and sufficient sureties,
in sum at least double tuo amount OF such
Judgment Ut .ny) and interests and costs,
payable to the appellee conditioned that the
party appealing snail prosecute this appeal
to effect, or shall pay and satisfy the judg-
ment or decree that may be rendered against
the obligons in such bond" General
Laws 1878 p 16 b, sec 21.l In the case
under consideration. the appeal bond from
the Justices court WAS ''that the said Miller
s. Hendricks shall prosecute their said ap-
peal to effect, and shall pay and satisfy any
Judgment that may be rendered against them
In said suit" Our supreme court has said,
"when the conditions of statutory bond
are clearly and dehaitely stated, we think
thu bond, if 1t docs not literally follow the
statute must clearly embrace all the condi-
tions prescribed by it," so Tex 70. Ia
other words, bond which in its conditions,
upon fair construction of the language
used, is in substantial compliance in every
material respect with the statute, is sufficient.
The appeal bond in this case, whilst not a
LITERAL was q substantial compliance with the
statute referred to, and the court erred in
dismissng the appeal for its supposed in
efficiency. Reversed and remanded.
White, Z. j.
Minor ct al. VS.. Gose; appeal from Lamar.
This was proceeding by injunction to re-
strain the collection Of o money judgment.
Injunction was not sued out until more than
ono wear had elapsed stter the judgment
sought to be enioined had been rendered, and
ahoUld have been diamilsed IN the court be.
low. Tho proceeding can not BE- maintained
after the lapse of so much time after the judg-
ment sought to be enjoined had been rem
dered, there being no averment that the sp.
plication had been delayed in Consequence OF
any fraud or fAlse promises msds by the
plaintiff in the Judgment, nor any other of
tho causes mentioned in tho statute, which
would excuse the delay. r. S. Art. 2 $50.
For error in refusing TO dismiss the proceed
ing, the judgment must be reversed and this
court enter such judgment as should have
been rendered In the court below. The judg.
ment of the county court will be reversed and
SET aside, and cause dismissed at cost Of ap-
pellee. Winkler, j.
Montgomery va Henderson ct al; appeal
from Travis. This suit was instituted before
aiastice of the peace, where judgment was
rendered against the appellees for Sl37.60
and costs. Appellees appealed to the county
court where the plaintiff moved to
dismiss the appeal, which motion
the court ass7rued, aud on q
trial and hesring, gave Judgment against the
plaintiff, Montgomery, from which thir APP
peal il prosecuted. The instrument sued on
does not make the author and sender Of the
Telegram an eDdorser, but an original sure
ty for the payment of the money obtained
upon the teieersm, and, hence, be wss not
entitled to notice that the money had been
obtained upon it. The judgment OF :seI
county court being directly Agsinst the tes-
timony, it mus, be reversed and The cause
remsndsd. Winkler, J.
Wiley Adams W the state; appeal from
Williamson. Appellant Yves convicted of
then Of yesrling, mainly upon the testi-
mony Of witness who hsd stated 10 defend
ant, before trial, in presence Of Others, that
he knew nothing wbsiever about the alleged