The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-05-03


REPORTED BY ED. j. HAMMER.
Parties desiring information upon matters
concerning the higher courts will receive such
by writing our court reporter
Pointer and wife VS.. Flash, Lewis
q Co; from Dallas county.-As appll-
cants did no avail themselves of the
remedies provided to secure the de-
sired evidence, the application for
continuance was properly overruled.
The officer in his certificate having
stated that it was given under his
hand and seal, it will be presumed
that the original contained the seal
omitted in the certified copy. The
court having determined the bulance
due, and rendered judgment therefor,
foreclosing the lien given thereon and
ordering the land to be sold to pay
the same, there was no error. AT
firmed.-Watts, j.
Woodbridge VS.. Griffith ct al; from
Lamar county--The law of 1875 CIV
ing right of appeal from mayors
court to the county court, did not pro-
vide that when the principal failed to
appear the county court could render
judgment against the principal and
sureties. and judgment rendered
therefore is void. Applicant claim
ing the land by virtue of a sale under
such Judgment his title fails. AT
firmed.-Watts, j.
LOOMS ct al VS.. Tumey ct al; from
Travis county. = The allegations of
the petition and the amount in con-
troversy showing that the district
court had no Jurisdiction after the
constitution of 1876 went into effect,
this court has no jurisdiction to hear
the appeal and the case is reversed
and the lower court ordered to trans
fer the cases to the respective courts
to which they belong. Reversed and
remanded.-Watts, j.
Ferris VS.. Streeper ct al; from Gray
son county. - Appellant having pur-
chased~the property in controversy
from the defendant in the suit pend
ing the litigation, he had the right
to assert his rights and secure, If pos
sible, q new trial after Judgment
against his Vendee and he might as
sign any errors committed in refusing
him new trial. but he cannot take
advantage on appeal of any errors
committed on the trial as against
parties. Atfirned.-Watts.J j.
Elston VS.. Jasper; appeal from Col
lin county.-As the record does not
show the nature of the suit, nor the
pleadings, nor contains statement
of facts or bill Of exceptions, the court
cannot but say that if there was any
error committed that it was abstract
error. Nor can it be seen that the
court below had Jurisdiction. AT
firmed.-Walker, 2. j.
Langton ct al VS.. Mulhall ct al; ap-
Ellis OnnnfU -INhn chico.
ton that the petition was not endors-
ed as required by law, not being rails
ed in the lower court, cannot be avail
ed of here. The certificate of the
clerk to the acknowledgment of the
wife not stating that the instrument
was fully explained to her was fatally
defeySst.op Reversed and remanded.
[WasEg,5.
La Belle wagon works VS.. Tidball,
Van Zandt q Co.; from Tarrant coun-
ty.-The act of March "a, 1879, did
not and was not intended to repeal
the act concerning fraudulent con-
veyances which were in force in this
state from the days of the republic to
the present time. Hart Dig. Art.
1451, Rev. Stats. Art. 2465. Assign
ments for the benefit of creditors
coming within the scope of the act of
March "a, 1873, ARE governed by its pro-
visions but in all other cases the
ancient statutes of 13 and u Eliza
beth, from which our statute of
fraudulent conveyances is borrowed,
and almost literally copied, is still in
force here. For the law in general
applicable to such cases, see Is Tex.
1879; 30 Tex. SO. Reversed and re-
manded.-West. j.
Gown. 81 Go. VS.. Jones; from Dallas
coGhtyNThere was no error in the
court in striking out the amended
answer. A motion to strike out
might properly be disposed of on the
motion docket before the trial, or be-
fore the announcement of readiness
for trial. A party announcing ready
before the objection to the interroga-
tories is disposed of does so at his
peril. The affidavit for continuance
failing to show such diligenceas made
it a matter of right, it was in the dis
erection of the court, without clear
abuse of which we cannot reverse.
Affirmed.
Taylor VS.. Campbell; from Collin
county.-There being nothing in the
record which we can consider as a
statement of facts, and the burden of
proof being upon appellant 10y the
general denial of appellee, we must
presume he either failed to make the
necessary proof or that the proof of
appellee rebutted that offered. In the
absence of statute fixing the period
of limitation, it would seem that the
longest period prescribed as bar to
real actions would bar an action for
specific performance of contract to
@conyey land. administrator, j.
Jones and wife VS.. Carver and wife;
from Dallas county.-A written agree
ment for the sale of land must con-
tain the essential elements of con-
tract, expressed with such certainty
as iIOsne understood without the aid
OF parol evidence. The most impor-
tant element of the contract is that
which Identifies the subject matter.
Without it is clearly expressed in the
contract, or unless the land is so ex-
pressed in the contract as to be easily
determined, a specific performance
thereof will not be enforced. Affirm
ed. -Stayton, j.
= KOch's Discovery.