The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1883-04-12
THE HIGHER COURTS.
GALVESTON TERM, 1851
Synopsis of Opinions OF the Supreme
REPORTED BY ED. j. HAMMER

W dlk6r cOu0Cy.-f OF JQ0 principal
question in controversy see Kennedy
It al VS.. Anderson county, already
published. Is Texas Law Review.
The district court did not err in grant
ng the temporary injunction and on
inal hearing sustaining it. The law
n force u. ID. art. 1884 exempted the
in controversy. The cotton
and corn crops were also exempt, they
being necessary to the beneficial en-
ioyment of the homestead. IA Tex.
598. Affirmed.-Willie, G. j.
Lewis ct al VS.. Meisner; appeal from
Austin county.-This is suit by ap-
pellee against apr Giants for damages
for an alleged treSpasS. A. one of the
appellants, of the firm of A., b. & c.,
being a resident of New York, filed
his bond for removal of the cause to
the federal court. Held, The suit
being against all of the parties as joint
and the state courts hav-
ing jurisdiction of all the other defend
ants, the motion to remove was prop
erly overruled; yet if A. fails in his
efforts to remove and comes in against
his will and is forced to trial, he
valves no right by his defending in
the state courts. Reversed and rem
dered for Lewis ct al.-Opinion by
Watts, J.-Adopted.
Grimes VS.. Watkins; from Mata-
gorda county.-Grimes made motion
for continuance in the lower court
which was refused, and that error is
the only one noticed. He had pied an
answer, October 6, 1874, in
oh hn
against Watkins; the account was
duly sworn to under the act Of 1874,
page % r. 5. Art. 2266l. A short
time before the trial, which was had
at the May term, 1877, Watkins filed
his affidavit in dispute of the account.
This imposed the burden of proof up
on Grimes. The continuance was ap-
piled for, for the purpose of obtain
ing the necessary proof to establish
his account. Held, Under this state
of facts the court erred in refusing
the continuance. q. ID. Art. 81, IL
Tex. 81 Reversed and remanded.-
Opinion of Delaney, j.
Dunman VS.. Coleman ct al, from
Goliad county.-A. owned large
stock of cattle, which he sold to G.
& Co., by bill of sale, they executing
at the same time two instruments,
which in effect were but one, which
provided for the payment of the pur-
chase money. They stipulated in
these instruments that a. was to
gather 1000 head of cattle at stipu-
lated price, and upon aScertaining the
amount they were to give A. their
note for the balance of the purchase
money due. They sold to appellees
by bill of sale the entire stock as they
purchased it from A. Held, The in
Struments clearly evidence that they
were but a mortgage in favor of A.
and must be so held. Reversed and
remanded.-Opinion of Walker, D.,
adopted.
Houston ct al VS.. state; appeal from
Gonzales county.-A proceeding upon
a forfeited bail bond is a suit upon
the bond. The scire facias serves
both as a petition and citation. To
recover, the state must prove its cause
of action as in civil suit, by putting
in evidence the bond, and the judg-
ment nisi declaring its forfeiture.
Here the state having failed to show
in evidence the judgment nisi, and it
must be held that the verdict is not
sufficiently supported by the evidence.
Reversed and remanded.-Willson, j.
The state VS.. Arlington ct al; from
Gonzales county.-Comes the defend
ants and move the court to dismiss
the cause, because the state herein
undertakes to appeal from a judg-
ment quashing bail bond, and be-
cause the case is a criminal case and
the state is prohibited the right of APP
peal. Held, under previous decisions,
both Of the supreme court and this
court, this motion must, for the
reasons stated, be retained. Consti-
tuition, article 3, Texas 26. THE
state VS.. Ward, 8 court of appeals, 1852
and citations Hart VS.. state, 1C
Texas Law Review.] Appeal dismis-
sed--White, p. J.
Arlington ct al VS.. state; from
Gonzales county.-The bail bond
should not have been admitted in ev.
idence. 1t showed on its face that il
had been taken and approved by q
constable of Gonzales county. The
bond declared upon in the scire facias
is described as one taken by the sher.
iff of Gonzales county. There was
therefore, variance between them
which was fatal. The bond having
been taken and approved by the con.
stable in open court, and the defend.
ant having left then before the ad.
journment of the court, it will be pre-.
sumed that the bond was taken with
the knowledge and approval of the
court, and was, in legal contempla.
ton, taken by the court. The court
is not required to approve bond. TO
c. Z. Art. 312. Reversed and re-
manded.-Willson, j.
Esher VS.. the State; from Cass coun.
ty.-A party must leave his bill OF
exceptions to the ruling of the lower
court refusing his application for a
continuance, or this court cannot re.
wise the action of the lower court
For the other questions presented see
Neyland VS.. the State, IA Tex. Law
Review. AS to the motion for new
trial on the ground of newly discov-
cred evidence, were the desired wit
ness present at the difficulty. appellant
must have known it or by reasonable
diligence could have known it, and
therefore this evidence does not come
within the rules of newly discovered
evidence, nor does appellant show the
necessary diligence as would entitle
him to a new trial. Affirmed.-White
p. j.
Kemp VS.. state; appeal from Erath
county.-This cause was before this
court upon a former appeal IL Tex
ct. App. ia and was then reversed
and remanded because the evidence
was insufficient to support the YER
dict. Upon the last trial additional
evidence was adduced, but the con-
viction was only for murder of the
second degree. Held, All the errors
assigned have been carefully noted,
the charge is full, fair and impartial,
clearly presenting the principles of
law applicable to the case, and as
there is no error apparent, the judg-
ment is affirm Wilson, J.
Houston VS.. the state, from Con-
Zales county.-The court did not err
in rendering and entering judgment
final upon the judgment nisi, at a
civil term of the court. The cases of
Cassidy VS.. the state, CT. App, 96,
and Carter VS.. state, Idem 165, and
Willis VS.. the state, Idem GLIB, are all
to the contrary, but these decisions
were rendered before the revised
statutes went into effect and are
therefore not applicable. The law
now declares that after judgment
nisi the procedure in these cases Is on
the civil side of the docket.
Affirmed Wilson, j.
Arlington ct al VS.. State; from Con-
zales county.-The offense named in
the bond is stated as "theft of neat
cattle" The complaint charges de-