The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-11-16
SYNOPSIS OF OPINIONS.
Tyler Term 1ss!-Reported for the statesm
Commission OF Appeals.


Commission of Appeals.
Reed VS.. state appeal from Upshur
Countrywide 81. for the Government of
district courts, requires the assignment
of errors to be filed at the same time that
the appeal bond is filed. This applies to
n peals in misdemeanor cases, and when
such rule is not complied with We cannot
consider the assignment of errors, and the
appeal must be dismissed. Appeal dis
missed.-Willson, j.
Cleveland VS.. Duggan; appeal from
Guadalupe county.--The judgment APP
pealed from below was rendered in favor
of Duggan d Bros. The appeal bond
herein filed contains a misdescription of
the judgment In that the judgment there
in described omits entirely the name of
Ben Duggan, and contains no condition
whatever either as to costs or principal of
the judgment. Appellee moved to dis
miss upon that ground and the motion Is
sustained and the appeal dismissed
Wilson, j,
White VS.. Embrose; appeal from Bell
county.-The judgment described In the
citation In error Is stated to have been
recovered December 1, 1881, when in fact
it was recovered December 4, 1881. The
citation also fails 10 state the date when
the petition in error was filed. REV.
Stat. 1901 Held, Both grounds are suf-
fcient to dismiss upon. The appeal is
therefore dismissed Wilson, j.
Bacon vs. Lloyd; from johnson county,
The officer taking the opposition in ques-
ton having failed to certify that the an
swers therein were sworn TO and SUBJ
scribed before him, 1t should have been
supposed. RS Texas, 6So The issue
being before the jury, oh Irge as to what
constitutes partnership should have
been given.
Where, if a matter pleaded In recon-
vention arises out of, Is connected with
an incident to the cause of action of
plaintiff. and II proven would give de-
iendant right of recovery thereon. 1t
should be admitted. C37 Texas, 10 Re-
versed and remsnded Wilson, j.
Beer VS.. Lindenthal; appeal from Nc
Lehman county.-One l. Beer gave his
note payable to himself endorsed by c.
Beer, to Lfndenthal. The latter endorsed
it and gave it to the National bank. The
bank sues all parties. Lindenthal de-
faults G. Beer pleads that he was only
an accommodation endOrser, and should
have been given notice of the makers
failure 10 pay. Besides he was released
because without his consent time for pay
ment had been extended Judg-
ment BY default against Linden
thai and l.. Beer. Lindenthal now sues e..
Beer alleging perjury on his part on
maker. Pleas of res adjudicata by Beer.
Held. The former suit being between
other p rites on such facts as above, it is
not res adjudicata as to the second suit
and parties. Judgment reversed and re-
formed so as to bear eight per cent inter-
est Instead of twelve per cent. Reversed
and reformed.-Willson,J
Hips ct al VS.. Sass. appeal from Lee
county The courts ofthe county wherein
nprfnrmah IL
rlsdiction Of the case, though defendants
may be non-residents OF the county, and
the contract artly performed In another.
When q judgment is recovered in the JUS
tees court aud on appeal the county
court gives lesser judgment, costs of the
latter court must be adjndged against the
winning party. Reversed and so re-
formed as to adjudge costs of the county
court against appellee. Wilson, j.
Allgelt VS.. Brister; appeal from Bexar
county Appellant was attorney for APP
pellee and controlled large sums OF money
belonging to him. Allgelt bought for
Brister two lots, paying $500 out OF
Brister's money for the same. The lots
were only worth $1,000, and before pnr-
chase Brister informed Allgelt that he
would pay no more for them. The over
charge, its concealment, etc., is proven.
Allgelt proved that he took the property
from Ports for $500 of BristeI's money,
which Ports had used. Held, The court
erred In charging to jury, that elf ALI
gelt bought the property and paid for 1t
out of Brister's money" for there was no
evidence of any such issue. A final set
element having been made between the
parties the same could not be opened
unless for fraud, inadvertance or mistake.
The burden of proof was upon the party
seeking to avoid such fraud or mistake I.
Reversed and remanded.-Watts,J j.
Dreyfus VS.. state; appeal from Dallas
county.-Appelaut was convicted OF forg-
iDg an order on Tillman u Co. Applica-
tiOn for continuance refused. Held, The
application did not show proper diligence
in appellants attempt to procure the tes-
timony of absent witnesses. The indict-
ment cannot be called in question. The
objections to the courts ruling are not
well taken. The charge of the court Is
not obnoxious, charging the law OF the
case, applicable TO the facts. The evil
dence supports the verdict and judgment
and 1t is affl rmed.-W Wilson, j.
Threlkeld VS.. state; appeal from Delta
county Evidence of the want of chastity
of the assaulted party In a case Of aggra-
waited assault and battery is not admissl-
BILE. No predicate having been LAID as to
the time and place and circumstances as
to conflicting statements of witness,
evidence of such conflicting statements is
not admissible. Upon an inspection of
the record ne error i found and the judy
ment is therefore affirmed white, p. j.
Chancey VS.. state from Rains county.
We can not consider O statement OF
facts filed after the adjournment of court
unless some order appears In the record
that gave the party the right to file such
statement after term time. The informa-
ton is unobnoxIous. The questions as
signed for determination are such as can
not be considered without a statement of
facts, and there being none In the record
the judgment is affirmed.-White, P. j.
Pendleton ct al VS.. Morey; appeal from
Bell county.-An execution against one
Moore, in favor of Morey, was levied
upon some millet hay, valued at $500.
This is trial of the right of property.
The legal title was in MCGEE, though
Moore held and owned some of it. Nc
Gee loaned Moore money, taking bill OF
sale to the millet planted and a mortgage
on other property. Appellants were
Moore's security. While the bill of sale
on its face was absolute, 1t was in fact a
mortgage. The verdict of the jury held
the hay subject TO the execution. The
pea to the jurisdiction of the court should
have been made in the justice court, and
came too late in the county court. Affirm.
ed.-Willson, J.
Gulf Colorado and Santa Fe railway
VS.. Flake; appeal from Bell county,
The question presented is, the company
having right-of-way oven a mans land,
is it liable for damage to such land by
reason of the acts of contractor or his
men while constructing the road The
damage herein was beating down the
land, damaging cotton not gather, pull.
ing down fences and letting stock in, etc.
After receiving and discussing the anala-
gous cases the court held the company
liable, and as they do not complain Of
excessive judgment and there are no
errors apparent the judgment is affirmed.