The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-10-19
SYNOPSIS OF OPINIONS.
Tyler Term Iss,-RepOrted for the Statesman.
supreme Court.

smith appealed from that decision 10 the
district court without giving bond. The
case coming on to be heard before the
district court LumkIn moved to dismiss
the appeal because no bond was
given, which being heard was
oyerruled and the Judgment Of the county
court reversed and the will refused pro-
bate. Appellant appeals and assigns as
error the refusal Of the district court TO
dismiss the appeal. Held, The court
erred In refusing TO dismiss the appeal.
The statute which provides that no bonds
shall be required Of executors or admin
istrators In appeals taken does not en-
brace guardians nor does IL exempt them
from giving bonds in cases of appeals.
raj Tex. 5591 That section 100 OF the acts
of 1915 requires guardians to give bond,
the district court therefore erred In re-
fusing to dismiss the appeal. Reversed
and dlsmissed.-Bonner,J j.
Davidson VS.. Patton from Nacogdoeh-
es. Appellee brought this suit in JUS
amount therein and appeal to the county
court, the jurisdiction of which being
abolished the cause was postponed to the
district court where judgment was rem
dered for the full amount. Appeal to the
supreme court. Motion now made TO dis
miss the appeal Tor want of jurisdiction.
Held-The supreme court has Iurisdic-
ton of any cause on appeal from the dis
trIct court, that court having appellate
or original Jurisdiction, IL not being con-
tended but that the district court properly
obtained and held appellate jurisdiction
1t cannot be denied or gainsaid but that
this court is the proper appellate tribu-
nal (52 Tex. 5S1l. Motion to dismiss
verruled.-Bonner,J j.
Haywood VS.. Aiken appeal from An
derson cOunty.-Cnder the statute before
The adoption of the constitution OF 1875 1t
was lawful to charge any amount OF In
terest upon which the parties might
agree and the parties having agreed on
any amount of interest thong hit largely in
excess OF the amount permitted by law
under the constitution, yet il was not
error to render judgment on the principal
with interest at the agreed rate and or
der the same to bear interest at the
agreed rate, though in excess of the
amount allowed by law. [13 Tex. Is, 20
Id, IT, Afirmed-Slayton,J j.
Court of Appeals.
Harris VS.. Hood appeal from Cherokee
county.-The assessed value of property
seized and claimed by the third party de-
termines the Jurisdiction of the tribunal
wherein the trial OF the right Of property
is to be adjudicated. The officer making
the levy valued the goods ut $4,000, but
amended his return by stating he levied
only on enough to satisfy the claim OF
$3.50. The writ was returned to the JUS
tice court, instead of the district court,
where it belonged. The justice court
found the matter in controversy to be
$3.50, and held Jurisdiction. Held, The
court erred in holding Jurisdiction. The
value of the goods levied was $4,000, that
determined the jurisdiction TO be in the
district court. The justice there erred
in holding Jurisdiction for which 1t was
error in the county court to su stain. Re-
yersed and emanded.-White, p. j.
Houston and Texas Central railway
company VS.. Nicholson; appeal from
McLennan cOunty.-Suit brought against
appellant for certain household goods lost
by them while being shipped over their
line. Judgment for S10S.55 for one box
of goods which failed to reach its destina-
ton. There was no evidence introduced
showing the character or value OF the lost
goods. The account setting forth the
items and their value was failed to be
proven. Held, Without such evidence as
to the character and value of the goods
lost, u judgment for such would not be
supported by sufficient evidenc Q, and must
be eversed.--Reversed and remanded.
White, p. j.
Akin VS.. Kennedy appeal from Ander
son CONFECTIONERY held judgment
against the Palestine railway company.
Il
assets, was sold at auction to the highest
bidder, Akin, the president of the road,
pur chased it. He was large stakeholder
in the company. He paid some taxes on
the road and credited the balance on the
amount due him as a shareholder. The
sale was ordered and took place pending
the suit of Kennedy against the company.
Akin took possession of the property and
was in the act Of shipping 1t to Dallas,
w QffQQhmanE
under trial OF right of property. Ken
nedy obtained judgment for $500. Ken
needy alleged that the order of sale was in
fraud of his rights as creditor of the CON-
pany, attacking Atkins title on the ground
of fraud. Held, The evidence fully sus-
tains the charge of fraud. The lud gment
OF the case is attained by the judgment
rendered, and the Judgment is affirmed.
Wilson, Judge.
Dibrell VS.. Ireland & Burgess ; appeal
from Guadalupe county.-A suggestion
of delay and q claim for damages opens
up the record for the consideration of all
errors, If any, therein. rs Tex. 400 %
Tex. 545 Id, 1871 The petition alleged
that ID. make and delivered to 1. & b. for
promissory note, etc. There is no alle-
cation of ownership in appellees, nor any
allegation showing the right upon which
plaintiffs sue. Held, The part of the pc
tition alleging that the note was made for
the use and benefit Of e. W. was an aver
ment debars the note and not descrip-
tive VERNE mt with which the note must
correspond. There being no right IN
plaintiff shown, nor any averment OF
ownership in them or E. W., demurrer
to the petition should have been sus-
tanned. C22 Tex. 600; "a Tex. 157; Id.
5S2 /; 80 Tex. 70; 81 Tex. 147; 43 Tex.
175.1 Reversed and -remanded.-Will-
son, j.
Pease vs.. state; appeal from Ellis
couDty.---Defendant was assaulted and
struck by an active ami able bodied young
man twenty-seven years old, and being
an old nan resorted to the protection OF u
pitcn fork, but not until he had grounds
for believing his assailant was drawing
knife with which to cut him, and with
which, afterwards, he did cut him. The
court held the means beyond the require
ments of the occasion. Held, error. The
means used were not disproportionate to
the assault about to be made, and for
which protection was sought, and such
did not make him liable for an assault
He did not exceed the bounds of legiti-
mate seli-defense. Reversed and re-
manded.---White, p. j.
Ketcherside VS.. Cox ct al appeal from
Hill county.-In this case the amount in
rendered was only for $40. On appeal to
the county court the case was dismissed
for want of Jurisdiction in the cause.
Held, The court had jurisdiction and it
was error for them not to try the case.
The amount in controversy in the original
suit, and not the amount of the judgment
rendered, determines in appeal the juris-
Austin term 1881 Reversed and re-
manded.-W hita PI
Hunter vs.. state (; appeal from Anderson
county.-Appellant raised cotton on Jack
sons place, three-fourths ofwhich belong
ed to him (the appellant). Having gath
cred the cotton appe liant asked Jackson
what should be done with his part. Jack
son ordered the cotton hauled to q named
place. Ii being wet was not hauled. De-
PENDANT sold 295 pounds, which he said
was raised on other land. he then told q
witness he had hauled 900 pounds to q
certain gin and had delivered to jackson
his part in payment of his Indebtedness.
Jackson was known to be living when the
case was tried, so was the owner of the
gin, who reside in the county of the trial.
Neither were produced at the trial.
Held, The evidence is wholly in
sufficient, inasmuch rs 1t does not
even give sufficient proof OF the
corpus deficit. The cotton disappeared
The witnesses might have mistaken the
size and weight OF the pile. Jackson and
the owner Of the gin being accessible
should have been put upon the stand, but
not having been done so their absence
should have been accounted for. The
best evidence existing in the prosecution
must be produced or its absence explain
ed before inferior evidence can be sane
toned. rs CT. App. 453, 10 CT. App. 800,
IL CT. App. 40l, and others.l The convic-
ton resting on insufficient and inferior
evidence when other and better might be
had thu indnnani Ia s.,ataI....l