The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-11-02
mn APPELLATE onnnra.
synopsis ~ Oplnions o ,he Court on ppenls'
Tytef ISfu. 1889

ynopala ~ Opini0ns 0ffhe tourt ON pehNi
Tyler Jsfm, 1889,
brown VI, the Sdate from Falls county
Under articls6sO ofthe Code Of Criminal Pro'
,edure and Article 1858 OF the Revised Stat
ntes, tits the express privilege Of a defend
ant on trial when he has taken exception
TO any ruling Of the court, whether as 10
matters Of law or Of evidence, that he have
time then and there to properly prepare his
bill of exceptions, and this holds true
whether he have one or more than one
counsel. Reversed and remanded. Hurt, J.
Whitley VS.. Jackson; from Anderson
county. An attachment bond is not good
If il fails to contain a provision Tor inc COSTS
which may be adjudged against the attach
ing party In case he fails TO be successful.
The bond herein was conditional "Ihat
will prosecute his suit with erect ana
that he will pay such damages as shall be
adiudeed against him for wrongfully sery.:
ing out such attachment" Held, the word
"costs" being omitted is fatal. 1t is not
permissible, In order to correct such an er-
ror. that the plaintiff file cost bond before
a motion to auash is acted upon. In cases
originating in justices courts, except IN
certain specified cases, the pleadings are
not required to be in writing, the plea OF
payment is hot required TO pc IN Wrlting,
and the same rule holds true in cases. when
appealed to the county court. A rebuttal
account filed by the plaintiff is a sufficient
pleading, if any in writing was required, TO
render the proposed evidence admissible.
Reversed and remanded. Wilson, j.,
Wall VS.. Hussey & Logan; from Marion
county. Appellees recovered against APP
pellant Judgment in the county court OF
Marion county for $2l2 9S. Win legal IN
peal given, but not perfected, and cause
Row brought up on writ of error. Appel
lees, counsel move the court to dismiss the
anpeal, because no briefs have been filed
either in the court below nor in this court.
Held, the rules in that respect not having
been complied with and no good ground
for failure shown, the writ OF error Is dis
missed. White, p. j.
Granville VS.. Harris; from Camp county.
1t is not admissible in cause on appeal TO
the county court to show by oral
Siyen in the lower court by
| the appellant. The proper practice
would be to nave the justice of the peace
before whom such notice was given to enter
such order in his court nunc pro tune. Inc
county court did not err in refusing to hear
| the oral testimony offered, aud the judg-
ment is affirmed. White, p.l.
Zuckerman VS.. Nave d McCord; from
Wood county. The transcript brought up
| on motion to affirm on certificate in tins
cause is in every essential particular a
strict compliance with the law. 1t contain
the proper clerks certificate, certifying 10
the. Judgment recovered, the fling OF the
netition and bond for writ of error, its
approval and the issuance of citation and
its service upon the attorneys of the oppo-
site party, copies of the judgment recov-
cred of the bond for and citation in error,
OF the writ of supercedeas and its acceptance
of service by the sheriff, and the clerks
certificate to the correctness OF the capias;
it is therefore affirmed. Hurt,J.
| Phillips and Rust VS.. Blum ct al; from
Galveston county. When a settlement was
had appellees furnished appellants an item,
lied account containing four notes and
credited by the payment of the one sued on
herein After settlement it appears that
it was discovered that the note sued on had
not been paid, and suit thereon was
brought The receipt given by the agent
Of the appellee was an itemized one ana
did not contain receipt of the note sued
on. Held, it was not necessary tor the
mistake to be alleged as a mutual one, or
that II was caused by fraud or misrepresen-
tations on the part of defendants. III is
not necessary either that IN order. to and
before recovery, plaintiffs should place de-
PENDANTS in the same position they were
before the mistake occurred. Affirmed.
Hurt, j. ~,
ConIior VS.. Womack G. Son; from Morris
county, The evidence herein showed that
appeliees had furnished money to one
| Hawkins for the purpose of buying cotton
| for them, which, when bought, belonged to
them and was stored in their warehouse,
when seized under an attachment SUED out
| by appellant as cotton belonging to Haw-
kins. The appellant attempted TO prove
ypQ nt1rphaqnI
| Hawkins he held an interest therein. On
| this point the jury found for appellees, un-
der the charge of the court, which was
| full. fair and impartial exposition OF the
law of the case as applicable to the facts.
Affirmed. Wilson, j.
Pitts ct al. VS.. the State; from camp
county. Whenever the transcript III any
cause fails to show by whom it was appli' d
| for and to whom delivered and certificate
| of this fact fails to appear on the back OF
| the transcript, the appeal will be dismissed.
| This case was returnable to the Tyler term
of 1881. and no good reason is shown why
| il was not brought up. Held, the cause
will be dismissed for the latter error also.
| Appeal dismissed. White, p.
Galveston, Henderson d San Antonio
railway VS.. Stagner & Co.; from Caldwell
county. Goods were shipped from sta
InIinp. The NJ. 81 o. railway
made a contract tp deliver them for aspeci-
fled amount. When the goods arrived at
| Luling appellees offered the specified
amount, but were compelled to pay in ex-
cess $40 IS before they could get their
goods, This suit is to recover the excess.
| Held, whenever one road of connecting
: line undertakes to carry out the contract oil
| another il becomes liable for its breach.
! Affirmed. Hurt, ].
King VS.. the State; from Gregg county.
III Q evidence showed that appellant had
| traded on the stolen mule under an assumed
name, and was caught blowing with the
animal received for the one stolen. The
animal belonged in Gregg county, but was
sold in Harrison county. Held, the facts OF
the case sufficiently show possession in APP
pellant, and although the animal had wan
dered off from the owner, yet he was in
constructive possession of the owner at the
time of the taking. The venue was prop
erly proven by circumstantial evidence,
and the evidence sustained the judgment.
Affirmed. Hurt,
Zuckerman ct. ell. VS.. Huey & Phillips;
from Wood county. The parties defendant
| In error being partners IL is not necessary
To serve them each and everyone with a
notice and citation. A service upon any
one of the pa ties defendant 1hey all being
partners), Is sufficient, The certificate here
IN filed being in strict compliance Of the law
fsee Zuckerman VS.. Mare d McCord,
SUPRA, and there being no reason shown 70
the contrary, tire motion to affirm on cortif-
icate is granted White, p. ].
Hobart, IT,, vs.. Haywood; from Bowie
county. This court will bold attorney APP
pealing 20 the strictest compliance Of the
rules laid down for mis- guidance. Although
appellants counsel ha. filed his brief 10 a. s
court. yet he has wholly failed 10 fi'e his
brief in the court below as well as 20 CIV
anv good reason for the failure 50 20 do
The case must therefore be dismissed
Hurt, ].
wyers W. the State; from. Falls county
On the trial a states witness stated that be
he'd the memoranda book into which the
co-defeBdant Of the appellant bad put down
the brands Of the alleged stolen animals,
but that Il was home. Witness, over Obiec-
ton, stated that the book did not contain
Ir.1H ha