The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-05-31

Judgment taken against him by de-
fault would have been erroneous. II
he had filed pleas going to the QueS-
ton of jurisdiction over his person
for want of service upon him, they
should have been sustained, but this
was not done. No postponement OF
the cause to enable him to prepare
for trial was asked, nor were the ex.
ceptions filed by the defendant called
to the attention of the court. Held
Under such state of facts the plain
tiff in error waived any irregularities
in making Cora l.. B, au the plaintiff
in the cause. Whatever rights he had
against her up to the time she filed
her petition she was at liberty to as.
sent. Judgment affirmed.-Stay
A. j.
MOTIONS TO AFFIRM CERTIFICATES
We give in full the following de.
clSion of the court by Chief Justice
Willie, as rule for the guidance OF
attorneys in such cases:
Lizzie Locke ct al VS.. John L. Mil.
ler.-The certificate upon which the
atfirmance is asked seems to comply
with the requisites Of the law in all
respects in this, that the caption does
not state the date of the final adjourn
ment of the term of the court, at
which the judgment sought to be af-
tirmed was rendered.
This fact, however, appears in the
clerks certificate at the end of the
record, and as this gives us
the information necessary in order
to determine whether or not
the appeal bond was filed within
twenty days after the close of the
term, the certificate in this case will
not be held insufficient for want OF
the proper caption.
AS rule of practice for the future
guidance of the legal profession, we
will state that hereafter the same
caption as is prescribed by district
court rnle 81 40 Texas, 1927 for a
transcript OF record on appeal or
writ OF error, will be required in cases
for affirmance without reference to
the merits. And also that all the re-
quirements of rules Sc and "a TAI
Texas, 632 and 633] as to the manner
in which transcript shall be written.
fastened together, sealed and endors-
ed, must also be strictly followed in
reference to certificates for atfirmance.
The reason which led to the adop-
ton of these rules applies as
forcibly to certificates of this
character as to transcripts,
and this court has invariably enforced
them and dismissed certificates for
want of strict compliance with all
their requirements. As the opinions
given in such cases were oral, they
may not have been made known to
the profession generally, and hence
the number of certificates which have
come up to the present term lacking
in some one or other of the essentials
prescribed by the above rules. As
our ruling in these matters is now
put in writing, there can be no excuse
In the future for recurrence of
such errors. The motion in the
present case is granted and the judg-
ment affirmed without reference to
the merits. Willie, G. j.
In McKlnSey ct al VS.. j. M. Bib,
Lutterloh VS.. Benz. Worley, and
Thos. Griffin VS.. J. S. Scott, motions
to affirm on certificates were overruled
and the certificates were dismissed.
Oral opinions given.
Crescent insurance company VS..
Griffin & Shook; from Hill county,
Affirmed.
Springfield fire and marine insur-
ance company VS.. McKinnon 81 Call.
AS the cause was tried without a
jury, judgment is rendered by the SUI
preme court that appellees take moth
ing by their suit and that appellant
recover all costs in the court below
and in this court,
Texas and Pacific railway company
VS.. James Murphy; from Harrison
county.-Judgment of lower court
for $4,000 damages for loss of arm
affirmed.
Will Habert VS.. j. c. Grady; from
BeXar county. Affirmed.
Nancy A. Burrow VS.. Charles n.
Brown; from Navarro. Affirmed.
?. W. Hall VS.. M. K. Lott and wife.
BY agreement affirmed on certificate
w. r. Short VS.. city of Mckinney.
Affirmed.
Lockett VS.. P. J. Let; from John
son county. Affirmed.
Calvert VS.. Barry. Reversed and
remanded.
Carson VS.. Dalton; from Palo Pinto
county. Affirmed.
Hub Hunt and wife VS.. Riggs. Re
versed and rendered SO that the deed
and note in question be cancelled
and that defendant in error recover
from Mrs. H. and Hub Hunt $40 and
interest at per cent from rendition
of the payment in the court below.
Russell VS.. Buckle; from Bell
county. Affirmed.
Blanks VS.. Todd; from Travis
county: Motion to correct judgment
granted.
Court Of Commissioners Of Appeals,
R. S. Walker, Presiding Judge; A. T. Watts
and w. S. Delaney, Associates.
About thirty decisions were rem
dered by this court yesterday, few
of them being final, on account OF
having been referred by consent OF
the parties to this court for final de.
termination. The others have to be
adopted by the supreme court.
Hearne and Port Sullivan bridge
company, appellant, VS.. InSley, Shire
Il Co.; from Robertson county. Suit
was brought in 1873 by appellees as
owners and assignees of a contract
made by appellant and the Missouri
ohV 'AiuSO COAiPehAJ, ~ ohS wv
ton of a bridge over the Brazos
river Plaintiffs alleged terms of the
contract by the appellant with the
Missouri Valley bridge company;
also that plaintiff was hindered in the
work by high water, ETC., so that it
was not completed in contract time ;
that the bridge, however, was finished
and rendered about 18th of February
1878, and.again in July, 1873. but ap-
pellants refused to accept it. Plaintiffs
admit a credit of 81 600, paid to Mo.
& B. Co. but said appellant never
paid any part of the $4,000, or of the
5000. nor executed the notes or deed
of trust specified. They say the
Mo. and b. Co. in May, rs, assigned
them the contract for Invaluable con-
sideration and they now SUE for speci-
tic performance.
Appellant answered by general de-
murrer and demise and plead special
ly the noncompliance with specifica-
lions, that time was the essence OF
the contract and that by the failure
to build the bridge in the manner and
time agreed on appellant lost tolls,
revenues and profits to the amount OF
$1,000. Verdict and judgment were
for plaintiffs for $500 with
execution and for $500 with
free closure and sale of the
bride tolls and charter, but
perpetual stay of execution as to SO