The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-05-08
THE COURTS.
Synopsis OF Opinions Of Court OF
e Appeals.

Synopsis OF Opinions OF Court OF
He Appeals.
Heidenheimer Bros We. Marx & kempner;
appeal from Falls. If the court below had
no Jurisdiction, and that fact is apparent of
record. this court will take cognizsnce, on
appeal, of such want of jurisdiction, though
the question was not raised in the court
below. [4S Texas, 1903, ID. 227; 80 Texas,
1853 In the case before us, which is an
action for the trial of the right to property
levied on BY virtue of an execution, the
property seized and claimed is appraised by
the sheriff at S667. Our construction Of
section s, article 5, of the constitution, at
former day of this 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 the amount involved was $500 or
upwards. This construction is borne out by
article ll64 revised statutes. (See Nave,
Goddard s. Co. VS. Frieberg, Klein & Co,
Austin term 1881 Under the last cited
ruling the county court of Falls county hao
no Jurisdiction TO hear and determine the
case and its judgment from which this APP
peal is taken is reversed and the cause re-
mar ded. White, P. j.
Lerrick VS. Wright; appeal from Bexsr.
The conditions of the bond executed on ap-
peal in this case is that "the said Lerrick
shall prosecute his appeal to effect, and shall
pay and satisfy the judgment on decree that
may be rendered against him and the obi
gors in this bond by the court of appeals"
A bond thus conditioned was held to be in
sufficient in Reid vs.. Fernandez, So Tex. S79
The appeal bond being wholly defective this
court has acquired no Jurisdiction of the
case and the appeal is therefore dismissed.
White, P. j.
FL. & J.. O. II. R. Co. Vs. White; error
from Travis. This WAS an action on the case
for damages occasioned by the loss and
destruction of certain goods delivered and
received by the appellant as 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 judgment by
defendant was taken-the only evidence
adduced being the sworn account. This
evidence is insufficient to support the judy
ment. To entitle pSrty to the benefit Of
Article 1855 Revised Statutes, which makes
the affidavit of the creditor prima fscie
evidence Of its business and correctness, it
must be shown that the action was founded
upon contract. See II. 81 T.. y. II. II. Co. VS..
Hays & Co.. Texas Law Journal, Dec. /,
1880, and g. II, & s. A. r Il. Go. VS.. Nor.
ris, Texas Law Journal, March 2, 1881.
Reversed and remsnded. White, p. j.
Miller ct al VS. Sappington; appeal from
Bexsr 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 suretie.,
in sum at least double the amount of such
judgment (if any, and interests and costs,
payable to the appellee, conditioned that the
party appealing shall prosecute this appeal
to effect, or shall pay and satisfy the judg.
ment or decree that may be rendered against
tho. obligons in such bond" General
Laws 1878 p l6 b, sec 81 In the case
under consideration. the appeal bond from
the Justices court WAS that the said Miller
& Hendricks shall prosecute their said APP
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 a statutory bond
are clearly and definitely stated, we think
the bond, if 1t does not literally follow the
statute must clearly embrace all the condi
tiOns prescribed by IT," 52 Tex b 79.1 In
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 boud in this case, whilst not
literal, was a substantial compliance with tn,
s statute referred to, and the court erred in
dismissing the sppeai for its supposed in
efficiency. Reversed and remanded
Il White, Z. j.
\ Minor ct al. VS.. Gose; appeal from Lamar
This was proceeding by injunction to TO
strain the collection of money judgment
Injunction WAS not sued out until more thar
one year had elapsed liter the iudgmer
sought to be enjoined had been rendered, ~
should have been dismissed in the court bt
low. The proceeding can not b. maintain, {
after the lapse of SO much time after the iudg
ment sought to be eDjoined had been rem
dered, there being no averment that tho I'D
plcston had been delayed in consequence
any fraud or false promises mada by tn,
plaintiff in the Judgment, nor any other o
the causes mentioned in the sts1ete, which
would excuse the delay. Il. S. Art. 1916
For error in refusing to dismiss the proceed
ing, the judgment must be reversed and th
court enter such judgment IS should hsv,
been rendered 10 the court below. The iudg
ment Of the county court will DO reversed AMI
set aside, and cause dismissed at cost OF ~
pellee. Winkler, j.
Montgomery va Henderson, Q, al sppea
from Travis. This suit WI, in.li.uted befor,
ajustice of the peace, where judgment wa
rendered against the appellees for $l37.6
and costs. Appellees appealed to the count,
court where the plaintiff moved &
dismiss the appeal, which motion
the court overruled, and on
trial and hearing, gave Judgment against III,
plaintiff, Montgomery, from which thir sp
peal Is prosecuted. The instrument sued OF
does not make the author and sender Of tn,
telegram an endorser, but an original sure
~ for the payment Of the money obtsne,
upon the telegram, and, hence no was no
entitled to notice that tho money had beef
obtained upon it. The judgment of th
county court being directly against tho ties
timony, II must be reversed and the csus
remAnded Winkler a.