The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-11-09
SYNOPSIS OF OPINIONS
Tyler Term Reported for the Statesman
Court OF Appeals.


property before the levy. The evidence
amply supports the verdict and judg-
ment. Affirmed.-Hurt, j.
Harris vs. state; appeal from Free
stone county Although there may not
be a separate and distinct final judg-
ment, yet IL the judgment entered and
sentence pronounced contain all the es-
sentials of a final judgment, as pre-
scribed by article 79l of the code of
criminal procedure, the appeal will not
be dismissed for want of "A final judg.
ment. Motion to dismiss appeal over
ruled.-WillsCn, j.
Wheeler VS.. state appeal from Baylor
county.-Appellan was charged with the
crime Of murder in the court below. Upon
application upon writ of habeas corpus
bail was refused, and the appellant pros
ecuted his writ TO this court. Pending the
appeal from the judgment refusing bail,
the case was tried upon its merits in the
court below, and the defendant was ac-
quilted. 1t is moved to dismiss the APP
peal. Held, The proper facts being before
the court, by certificate of the clerk, the
appeal will be dismissed, but appellant
will be bound for the costs. Dismissed at
appellants cost.-Hurt, j.
Pitts VS.. Blake; appeal from Brazos
county-Blake sued out a writ Of seques-
tration TO recover from Pitts his land
lord, certain goods seized by him by
force and intimidation, but Pitts set up
an account for supplies in recOnventiOn.
Blake also set up his account. There
was general cross fire upon accounts
resulting in verdict for Blake. There
els no sufficient error upon which TO re-
verse. The evidence amply supports the
WQrnipt The Thurnf nf tho IL in
~ requisite essentials, and the Judgment
is affirmed. Wilson, j.
Rutherford VS.. state; appeal from
Franklin county. The indictments must
contain, If known, the name of the as
saulted party at the time of the assault,
and the name OF the assaulted party if
afterwards married is not sufficient If the
husbands name is used. The following
constitutes the evidence supporting the
finding. 81 had some words with defen-
dant He pushed me down. / don't
know that he was mad. was not mad Z"
Held insufficient TO support the verdict,
there being no intent to injure shown.
Reversed and remanded. -HuIt, j.
Jones vs.. Brazile appeal from Brown
county brought upon an account
upon an alleged contract to carry mails.
Judgment upon QudRtum meruH for
amount claimed. Held The suit
being brought upon a specific contract, a
judgment could not be rendered upon ev.
idence disproving such. The evidence
proves that the services were rendered,
but without any contract as to the price.
Held error in refusing to grant a new
trial Reversed and remanded.
son, j.
Sanders VS.. We'll & Bro; appeal from
Lamar county .-Appellees recovered
judgment for the value Of certain goods
and interest thereon from the date OF the
levy. Sanders had levied on the goods
as the property of another, and We'll IL
Bro. claimed the goods, suing Sanders on
his official bond for the illegal seizure
The main question presented is, can in
terest be recovered from the date of the
levyy Held, II was not error in the court
70 allow interest upon the recovery from
the date Of the levy. AS to other errors
assigned, the charge was correct in all
essential requisites. The evidence amply
supports the verdict and Judgment.
Afiirmed-Willson, j.
Chapman VS.. Texas and Pacific railroad
company; appeal from Grayson county.
THE citizens of Sherman purchased
from one Baugh certain lands which
they donated to appellants road for depot
purposes, etc. Deed was made
to the company before the full amount
was paid by the citizens TO Baugh. A
balance being due, Baugh transferred it
10 appellant who brought suit against the
company. Held, There was no privity
OF contract shown between Baugh and
the company and his assignee could OBJ.
tain no rights which the assignor did not
have. Had there been any such privity
the claim was barred by the statute of
limitations. Affirmed. Hurt, j.
Marsalis VS.. Souell ct Ala plaintiff
In a suit having sued out an attachment
and the defendant having confessed judg-
ment does not lose his right to the at
tachment lien. Appellant therefore had
no right In suing out the injunction to
restrain the sale of goods under such at
tachment lien. The verdict was sup
ported by competent evidence offered
Affirmed.-HuTt, j..
Freiberg, Klein Il Co. vs. Hardin;
appeal from Dallas county Where an
appeal has been taken from the iudg.
ment Of lower court and said iudg-
ment has been affirmed by this court, and
the mandate issued and filed in the lower
court, the clerk cannot be held liable for
issuing an execution ON such mandate,
although the judgment originally entered
In the lower court was rendered out of |
term time. Because, the appellant hav- |
ing appealed from the first judgment and |
that judgment having been in all things |
affirmed by this court, and the objection |
not having been made on that appeal that |
the judgment appealed from was void,
the appellants cannot make that objection |
now. The judgment of affirmance set |
tied the validity of that judgment so far |
as appellants are concerned and appellee |
was not wrong in issuing the execution. |
Affirmed.-Willson ]
Burlington vs.. Thomas appeal from
Brazos county. -Edrington being princi-
pal creditor of estate of b., prevailed
upon Thomas TO administer it. Under
order Of court Thomas sold the lands to
pay creditors. Burlington was the pur-
chaser, paying for the lands by crediting
his claim which he had against the es-
tate In order not to pay any money
upon these lands he gave Thomas his
written obligation that II the estate did
not have sufficient TO pay the cost of adj
ministration, he would settle such with
Thomas The estate lacked $649 80 of
paying such costs. Thomas sued Ed
rington upon his refusal to pay, and re-
covered full judgment. Held, There
was no error in the Judgment and the
Judgment is affirmed. j.
Newman VS.. McCullum; appeal from
Dallas county.-Where the court in a
suit on q promissory note and plea of
rcconvention for damages for failure to
perform the contract for which the note
was given recognizing both the claims,
although the original note then sued npon
may be within the jurisdiction of the
court. II the plea Of reconvention setting
up grounds sufficient In themselves Is for
damages exceeding the jurisdiction of the
court, Il has no Jurisdiction of the case.
III Texas, $40; 20 Texas, 800. Reversed
and remanded with Instructions to dis.
miss.-Wlllson, J.
fressler va state appeal from Nacog
doches county.-In prosecution for
selling liquors TO minors without the
written consent Of the parent, guardian,
or some one In their stead, the state must
aiiirmatlvely prove the selling, together
with knowledge upon the part of the
seller that the party purchaser was a
minor. Where an honest mistake might
be made II Is admissible to prove that the
minor passed for an adult. The court
erred In refusing such evidence. Reversed
and remanded-Hurt,J ].
81 Louis, Iron Mountain and Southern
railway company vs. Hindsman.- A pas
EcDger having purchased ticket for pas
age and checks for baggage over con
unuous line OF railway from one compa-
ny, each OF the companies are liable for
the due transportation Of such baggage
Tia fair market vaIuo onlv ~ ,SS -.