The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-05-31
NE STATESMAN.
From Sundays Daily.I
THE HIGHER COURTS.
Reported by j. j. Lane.l
Court of Appeals.

THE HIGHER COURTS.
Reported by j. j. Lane.l
Court Of Appeals.
Business was disposed of yesterday
as follows:
w. w. Pierce VS.. state; from BoSque
county. Carrying pistol.-Certlorarl
Terrell ct al VS.. Kellogg; from Wise
county. Two cases.-Affirmed on GER
tificate.
L. & H. Blum VS.. Egan & Bro;
from Hood county.-Affirmed.
l.. Hernandez VS.. state; from Nue.
ces county. Charge of theft.-Af-
Freburg, Klein & Co. VS.. Foeman &
Ray; from Shackelford county.-Af-
firmed.
v. Martinez VS.. state; from Nueces
county. Charge of theft.-Atfirmed.
Wilson, surety, VS.. state; from
Bosque county-Affirmed.
Lee VS.. Denman; from Coleman
county.-Aflirmed.
r. A. McWhorter ct al VS.. state;
forfeited bond; from Navarro county.
Reversed and remanded.
Shaunessy VS.. LIE Gierse & Co.; from
Mitchell county.-Reversed and re-
manded.
Galveston, Harrisburg and San An
tonic railway company VS.. Jas. NJ.
Tenegue; from Kinney Reversed
and remanded.
Sheffield VS.. state; from Milan
county. Occupation tax caSe.-Re-
versed and dismissed.
McElroy VS.. state; from Robertson
county. Murder case.-Reversed and
dismissed.
Galveston, Harrisburg and San An
tonic railway company VS.. Mud Creek
irrigation company; from Kinney
county.-Reversed and dismissed.
Galveston, Harrisburg q San Anto-
Mo railway VS.. ZONES McTeague; from
Kinney county.-A Judgment is void
unless the court rendering it has
jurisdiction of both the subject matter
and parties to the suit. Jurisdiction
of the subject matter is complete
when suit has been instituted upon
cause of actions comingwithin defined
authority of the court; and to this ex-
tent the Jurisdiction is valid though
not perfect for final disposition of the
case until the parties defendant have
been properly brought within the
control of the court by means of legal
process in the manner pointed out by
Law. When there is no. legal service
or appearance the Judgment is void.
In this case suit was instituted in
the court of justice of the peace of
Kinney county. Citation issued for
defendant to the sheriff or any con-
stable of b County" not naming any
county. 1t was issued, sent to, re-
ceived and executed by the sheriff of
BeXar county. This officer had no
authority to execute it any more than
he would have had if it had been di-
rected to an officer of any other NAM
ed county. A citation directed to an
officer of one county cannot be legally
served by an officer of another county.
(Witt VS.. Kaufman, 20 Texas Reports,
Supp. 3S4) Most clearly the service
was illegal and no jurisdiction over
the person was given the court by
virtue of it, nor was the defendant in
obedience to such void process bound
to appear and answer the cause of &C
ton before the justice. He did
not appear; and the justice
though he had acquired no
a Judgment by default against him
because of his failure to appear and
answer. This judgment was evil
IDENTIFY void absolutely. Subsequently
defendant came and moved to set it
aside and for new trial. which be-
ing oVerruled he appealed to the
county court. When the case came
on for trial in this latter court, upon
melton of appellant, defendant in
the court below, the citation issued in
itrcfian'S nI1QChnH
Defendant then interposed his plea to
the jurisdiction to the effect that he
had not been sued in the lower court
in the Justices precinct of the county
having Jurisdiction of the case. This
plea the court refused to entertain
and overruled.
The cause of action was verified
or sworn account for work and labor
done and performed. An affidavit
controverting the correctness and
business of the account was made and
filed in the county court, and after his
juriSdictional plea was overruled and
the case went to trial, the court
refused to allow defendant, the appel
liant, to introduce evidence of any
kind to support his own or to contra
dict the sworn account of plaintiff, or
to show that his account had been
paid. And without further evidence
than the sworn account of plaintiff,
the county court rendered judgment
again in favor of plaintiff. From that
Judgment this appeal is prosecuted.
1t was contended that the original
citation or service in Justices court
being void, as found and declared by
the county court in its action quaSh-
ing it, and the judgment of the JUS
tice being also void, could not sustoin
an appeal and that the county court
should have dismissed the suit. Held,
The county court having legally ac-
quired Jurisdiction which entitled it
to try the case de novo, did not err in
oyerruling defendants plea of privil-
eye in the nature of plea to the jul
risdiction, setting up the fact that he
was not sued IN the
proper Justices precinct. Fur
ther neld, that the county court
did err, however, in refusing to. al
low defendant to introduce evidence
TO prove that the account sued on
had been fully paid off and discharg-
ed and thereby to show that plain
tiff had no cause of action against
defendant. Because the court erred
in refusing to allow the defendant to
introduce any evidence, the judgment
is reversed and cause remanded.
White, p. j.
Submitted on briefs Deleon VS..
state, for both parties.
Harriet Lee VS.. state, for both
parties.
c. Y. Hays VS.. state, on brief for
state.
Ex rel. Geo. H. Walker VS.. state,
habeas corpus, set for May 30.
The Judges of this court have
lately been provided with fine chairs.
for use on the bench, and yesterday
Clerk White got into position in his
office a large iron safe, on which are
fine oil portraits of the former
Judges of the court, Ector, White and
Winkler. OF these judges White is
now the presiding justice of the
n0urt