The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-10-26
THE srrELLATE COURTS.
synopsis OF Opinions of the Court OF Appeals.
Tyler Term, 1882

Ccuute ou0 dtNlcit loo Vi tue iNtNlStu stat
utes, IL is the express privilege of defend
ant on trial, when he has taken exception
TO any ruling Of the court, whether as TO
matters o. 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 aud rem anded, Hurt, !.
whitley vs.. Jackson; from Anderson
county. An attachment bond is not good
IL IL fails to contain provision for the costs
which may be adiudeed against the attach.
ing party in case he tails to be successful,
The bond herein was conditional THAT
will prosecute his suit with effect and
that he viii pay such damages as shall be
adjudged against him for wrongiully serv-
ing out such attachment" Held, the word
costs" being omitted is fatal. Ii is not
permissible, in order TO correct such an err
ror, that the plaintiff file cost bond before
amotion to quash is acted upon. In cases
originating in justices courts, except in
certain specified cases, the pleadings are
not required TO he in writing, the plea of
payment is hot required to be in writing,
aud 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 remauded. Wilson, /.
Wall vs.. Hussey & Logan from Marion
county, Appellees recovered against APP
pellant a judgment in the county court of
Marion county for $2l2 80, with legal in
tcresL from the date thereof. Notice of APP
peal given, but not perfected, and cause
now brought up on writ of error. Appel
lees counsel move the court TO dismiss the
appeal, because no briefs have been filed
c,thcr in the court below nor in this court.
Held the rules i'll that respect not having
been complied with and no good ground
for failure shown, the writ of error iSds.
missed White, y. j.
CrcdVille vs. Harris; from Camp county.
\! is not admissible in n cause on appeal 10
the county court to show by oral
testimony that notice of appeal was
given in the lower court by
the appellant. The proper practice
would be to have the justice Of the peace
before whom such notice was given to enter
such order In his court nunc pro tune. The
county court did not err in refusing to hear
The ora. testimony offered and the iudg-
ment Is affirmed. White, y. i.
FISHERMAN vs.. Nave Il McC0rd from
Wood county. The Transcript brought up
ON motion TO affirm on certificate in this
cause is IN every essential particular a
strict compliance with the law. 1t contains
the proper clerks certificate, certifying to
the Judgment recovered, the fling of the
petition and bond for writ of error, its
approYa! aud the Issuance of citation and
ITS service upon the attorneys of the oppo.
site party, copies of the Judgment rccoy.
cred OF the bond for and citation in error.
OF the writ OF snperceGeas and its acceptance
OF service by the sheriff. and the clerk
certificate 10 the correctness of the capius.
IL u therefore affirmed. lur., /,
fhlllips and Rust VS.. Blum ct al from
Galveston county. When settlement was
had appellees furnished appellants an item
1ed account containing four notes and
credited by the payment of the one sued on
herein. After settlement it appears that
1t was discovered that the note sued on had
not been paid, and suit thereon was
Mou6ht The receipt given by the agent
ni the appellee was AN itcmi2ed one and
ala ny contain receipt of the note sued
on Held, 1t was not necessary for the
nnstake to be alleged as q mutual one, or
t"at II was caused by fraud or msrepresen-
tavons on the part of defendants. IL "a
iiot necessary either that IN order TO and
before recovery, plaintiffs should place de-
PENDANTS in The sa,uc position thew were
pnWoIe the mistake occurred. Affirmed.
Hufl. j.
Connor vs.. Womack & Son; from Morris
county. The evidence herein showed thar
nppcllees had furnished money to one
Hawkins for the purpose of buying cotton
Tor them, which, when bought, belonged 10
them and was stored in their warehouse,
when seized under an attachment sued out
ny appellant 10 cotton belonging to Haw
klns. The appellant attempted to prove
that when the cotton was purchased by
HAWKINS he held an interest therein. On
ths point the jury found for appellces. un-
der the charge of the court, which was n
run, tair and impartial exposition of the
Jaw OF the case rs applicable TO the facts.
Affirmed, Wilson, (.
Pitts ct 81, vs., the State from Camp
county, Whenever the transcript in any
cause fails 10 show by whom it was applied
ior and to whom delivered aud a ccrtiIcate
VI this fact fails To appear ON the back OF
me Transcript, the appeal will be dismissed.
lh,s case was returnable to the Tyler term
III 1881, aud no goodreason is shown why
Twas not brought up, Held, the cause
Will be dismissed Tor the latter error also.
Appeal dismissed. White, p.j
Galveston, Henderson 4 San Antonio
railway vs., Stagner 4 Co; from Caldwell
county Goods were shipped from u sta.
i ION on me N, 4 o. railway 10
ded amount When the goods arrived nt
hullng appellees offered the specified
amount but Were compelled to nay in OK.
0osS S.lO3 80 before they could ret their
good3. rms suit Is 10 recover the excess.
HNd, Whenever one road of a conncctinr
lue undertakes to carry out the contract Ol
another Il becomes liable for its breach.
Amrmed. Hurt, /,
AZ Emg Us, the State; from Gregg county.
ne evidence showed that appellant had
t,Nded OIL the stolen mule under an assumed
name, ana was caught blowing with the
ANNA. 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 an.
pcuant, and although the animal had wan.
dsred OF, nom the owner, yet he was IN
constructive possession of the owner nj tho
nme OF the taking The venue was prop.
efly proven Ivy circumstantial evidence,
anu the evidence sustained the Judgment,
Affirmed, Hurt, j.
Nuckerman ct, cl., vs.. Hucy 4 Phillips.
nom Wood county. The parties defendant
IN error beng partners II is not necessary
10 serve them each and everyone with n
nohoe and citation, A service upon any
one OF the patties defendant they all bein,
patnersl, is sufficient, The certificate here
IN tlcd being in strict compliance of the law
lsec nuckerman vs. Mare & McCord,
snpral, and there being no reason shown Ia
the contrary, the motion to affirm on ccrtiE
icstc Is granted. White, l.
Hobart, If, VS.. Haywood; from Bowie
county. This court will hold attorney nm.
healing to the strictest cpmpliance OF The