The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-01-26


No alfuotiyn notice NJ nOu Jurisdiction NJ au
NJ courts. Reversed and reminded. Do
10 ncr,i
fimmoba aud wife Vs. Bonner IT al fro
~ Cherokee county. That the pages NJ IN ~
T. peal bond were not tucked together IN col
:. spCItve order, * not of itself sulllC.ol
/. ground to warrant u dismissal. This NJ
v peal was by plaintiffs below, VITO were nC
" satisfied with their judgment for SIl7, an
q their bond was for $500 conditioned lite
a ally rs required by tatute, to suspend th
execution OF u Judgment" As the iudp
ment was In their fuvOr bond TO suspcn
Y was not necessary. But as such bond, unde
. Article 1894, il was insufficient in amount
and wa, not properly conditioned TOR q COS
, bond under Article liOl. If this were Il cas-
Of proper superyisive appeal bond, no COS
bond nder Article llOlwould be required
but It does not come within the Statute
The conditions of bonds TO remove cases {,
this court must be strictly complied with
which is not the case here. Judgment Wal
for $7i7, with interest from October %
: 1879, and the bond fixes interest rom Janu
airy, 1850. This is a palpablc distinction
Motion to dismiss is sustained. Gould, C. j.
Woodey VS.. Adams, from Harrison coun,
ty. The appellee sued for the recovery OF
one-half of a tract of land, claiming by the
will of his father, who died in 1883. Appel
liant claimed by virtue of purchase at exc
Cution sale upon Il judgment against the
eXecutriX, on community ueDI, the prop
erty also being community. The evidence
shows that the VIII OF the Appellee lather
appointed his wife, appellee's mother, exec
utrlX. Inc statute theh III lorce mart DiR,
l2l9) required noother actlon III me county
Court than PROBATE and registration Of the
viii and return of inventory OF estate,
which was done in 1859. In that year one
>. instituted SUIT against the eNecu.rlA anu
recovered judgment by consent lor SiVO,
With stay OF execution uhtll January ISL
thereafter VIII OF error was sueu
out to this court, ana judgment allrmed III
1865, with 10 per cent damages lor ueiay,
| Execution was levied ana the ianu sou 10
the persons under whom appellant CLAIMS
| by regular chain OF transfer. II Is Claimed
that the Judgment 10 o. was N0id' Ior me
| reason that under ART. l2l9, IliirU' DlS Il
creditor could not MAINTAIN sult against
| the eNecutrlN, uhless lhe ilelrS OF persons
entitled to the estate haq Deeh citeu 10 APP
pear ana give BOND, ana hau zone So when
| does not appear 10 nave Deen uoiic' DuI
held, that by the return OF the inventory,
under the act quoted the eNecutrlN ne
came the legal repres entatlVe OF the com
munity estate for every purpose. The
judgment in favor OF >. was Valld, ana the
court erred IN h0idlhg II Void' REVERSED
and remanded; Stayton' ,.,,.
county. Where it appears that no effort
had been maqe to take the deposltlohs OF
witnesses outside the State, until after the
commencement OF the term, ana the hrst
application for continuance had been re-
fused, and it appears that the witness
living in the county had been subP@naed
after the refusal oil the hrst applicatioil' ana
the substance and materially OF ms eVl-
dence is not shown, want OF diligence IS
manifest, and the application ms uillclent:
| While the note and mortgage OF IL. II offered
| solely TO show an equitable interest IN the
land in controversy, was lnadmlsslble, 1t
was admissible IT. as was the TACT III inns
case, it was offered to show his interest as
mortgager III the land, ana was materlai 10
him as plaintiff, or as defendant to the cross
action. Evidence that notice OF the eNls-
lcncc Of the note and mortgage was gwen
ut the sale, will not supply the place OF the
| excluded note and mortgage us evidence.
| The rule which, in cases tried by the court
alone, presupposes the non-cohslueratloh
of incompetent testimony given, does not
extend so far rs to excuse the rejection ot
competent evidence. Reversed and re-
manded. Gould, C. ].
Campbell VS.. Cox; from Anderson
county. objection that the amended petit
ton was not endorsed as required by stat
ute in actions of trespasS to Try title must
be interposed at the proper stage OF the
proceedings or 1t will not be considered on
| appeal. Sec 20 Tex, 536. The record DIS
closes what pleading is purported to be
amended, and that the amendment was by
| leave of court. The certified copies OF the
recorded deeds were properly admitted IN
! this case. See Is Tex, III (BallaId
VS.. Perry, which IS conclusive
| of the question. Assignment that
the Judgment is against the law and evil
dence, is too general Tor review. The ming
of the original petition suspended the
running of the Statute of Limitations, and
| it is held that neither the abandonment OF
the suit by some of the original plaintiffs,
nor the change III the aVermehts derasillhS
title amounts to new cause of action.
Affirmed. Could, c. j.
Watson vs. Aiken; from Red River
county The Constitution OF 1876 provides
that all interest charged over II per cent.
was usurious, and required the Legislature to
provide penalties for eNactiOn in excess
The penalty imposed hereunder was
forfeiture Of the entire interest, II
usury be pleaded specifically under
affidavit. This transaction involving an in
tereSt of Is per cent. was entered into sub
sequent to the adoption oil the CONSTITUTION,
but prior to the act OF August 70, denounc-
ing the penalty, Bat, held, that 1t properly
pleaded, the penalty could be invoked. The
defense of usury can he pleaded against
new note given TO cover the principal due
and the accrued usurious interest, and
which palpably was designed to cover the
usury: aud sale of land under a
trust to secure the new note
is without authority il balance
of the principal due is rendered. This was
an action of irespass to try title to the land
sold under the trust to secure payment OF
the now note, and undcr his plea Of mot
guilty. to such action the defendant could
not recover by evidence of usury in the
original contract. The court did not err in
receiving evidence of the usury, hut under
the evidence ala err IN rendering luuglieh1t
Tor appeliee' heNerseu anu lohai'ueu'
Gould, CD; A.. r..
CASTOR lhomas vs. MorIoNi lto'H
Kaufman county me apPeIlahts HeleiE,'-
fit lp 10 the sallti through the Will OF the