The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-04-26


Court.
REPORTED BY ED. ]. HAMMER.
Parties desiring information upon matter:
concerning the higher courts will receive suet
| by writing our court reporter.I
Clark VS.. Smith; from Tarrani
county.-Appellant could not, under
his presumption claim, avail himself
the three or five years statute OF
! limitations. To defeat PLAINTIFF
claim for rent, because of his failure
to pay taxes. it is necessary for de.
PENDANT to show both that plaintiff
has failed to pay the taxes and that
he, defendant, has paid them. Be
cause the record fails to contain evil
dence upon the question whether
appellee paid the taxes or not, is moi
| the slightest presumption in law that
he has not paid all the taxes. Affirm.
| ed.-West, j.
| City National Bank VS.. Cupp & Co.
from Tarrant county.-That stock
holder in bank signs its appeal bond
as a surety is not defect, but if it
were, it was not such as could be
reached by motion to quash. The oh
| lection is not good that the return on
the attachment shows that it was
levied on land pointed out as the pro.
perty of appellant by Frank Ball. II
the sheriff acted on Balls suggestion
he in effect adopted it and the return
was equivalent to statement that he
levied on the land or the property OF
defendants. There was error in the
Judgment foreclosing the lien upon
the attached property, and in quash-
| ing the attachment Reversed and
reformed.-Willie, G. j.
Elk parte, WhitloW; from Wichita
county.-The constitution not confer
ing jurisdiction upon district courts
in cases to contest the result Of an cleo,
ton, the legislature had no power to
change the jurisdiction given by the
constitution, unless the power to
make such change was given the leg
islature by the constitution. (48 Tex
4l4) Jurisdiction does not exist in
this court to reverse upon appeal from
the Judgment OF the district court in
a case of contested election. (52 Tex.
343.) Administrator, j.
| H. s. L. G. Ry. VS.. Byers; from
Grayson county.EThis court will not
revise errors assigned for giving or
|
statement of facts, except in cases
wherG the pleadings show the charge
to be necessarily wrong. (54 Tex. 459. }
Aftirned.-Walker, P. j.
Anderson VS.. Shaw; from Ellis
county.-Had the petition herein
shown that Shaw held legal title to
the notes sued on, but that the par
ties for whose use he sued were the
| Of
the suit could have been maintained
in Shaw's name, for the use of the
equitable owners. The petition and
evidence showing Shaw had no
interest in the matter, the suit by him
could not be maintained. Reversed
and dismissed.-Watts, j.
Miller ct al VS.. Adamson and wife;
appeal from Grayson county.-The
court passing upon the fact as well as
| the law, its finding upon the evidence
| is entitled to the same weight that is
given the verdict of jury. The
judge is the exclusive judge of the
credibility of witnesses and the
weight to be given their respective
statements, and there being evidence
to support his finding, the judgment
is atfirmed.-Watts, j.
Milliken vs.. First national bank;
appeal from GraysOn county.-The
admission of irrelevant or inadmiSSi-
BILE evidence by court trying cause
without a jury, is not Suffici Mt to
cause a reversal, if it rendered d
proper judgment upon competent evil
dence. Where judgment is proper
on the merits, whether errors have
been committed in the trial or not,
the judgment will not be disturbed.
Affirmed.-Walker, P. J.
Court of Appeals.
Billiard VS. the state; from Tarrant
county When the proper affidavit is
| on file showing the escape of a pris-
oner pending appeal, and the motion
is made, this court can do nothing
but dismiss the appeal. Appeal dis
missed.
Huddleston VS.. the state; from BeX-
ar county.-Where no plea is entered
of record before the trial there can be
no issue for determination, and con-
viction without plea is nullity, and
a motion to dismiss for want of a plea
cannot amend or curethe defect. Re.
Versed and emanded.-White, p. j.
Van Noy VS.. the state; from Fan
min county.-Appeal from convic-
ton for violating article 378 2. c.,
wherein the punishment was assessed
at imprisonment in the county jail
Held, There is no law authorizing
punishment by Imprisonment for this
offense; az ct. App. 54D. Reversed
and manded.-WillSon, j.
Meley VS.. the state; appeal from
Dallas county.-The charge of the
court was a full, fair and impartial
exposition of the law applicable to
the case and embraced in substance
the special instructions asked and re-
fused. The evidence is amply suffi'
cient and there being no apparent er.
TOR, the Judgments affirmed.-White
P.J.
Brinkoeter VS.. the state; appeal
from Guadalupe county.-In order to
convict appellant for wilfully OBJ
f, structing a public road, it is necessary
to show that he INSTRUCTED the road
"wilfully." A charge that 1.-The will
full intent of defendant is presumed
and it devolves upon him to show his
innocent intent" is in direct viola
| ton of article II, P. C. II Tex. Law
Review, p. 554. The charge, "if vol
believe from the evidence defendant
is not guilty you will acquit him." is
also error. g. G. P. Art. $40; Z ct
App. 140l Reversed and remanded
Wilson, j.
Thomas VS.. State; from Dallas
,county.-"Credible person." as used il
article 4O4, 7. G. means a competent
as well as credible witness. A hus
band not being competent witness
against his wife on a charge of adul
terry, is not such credible person,
as is authorized to make an AFFIDAVIT
for such an offence. (3S Tex. 1856.
Art. 404 p. c., Compton VS.. State, Ty
Ter term.) A party introducing wit
ness can only attach the testimony o
such witness when he, the witness
states such facts as are injurious t.
the party introducing him. &C. c
p. article $685. Reversed and dis
missed.-Wilson, j.
Hilliard vs., The State; from Travis
county.-There being no statement O.
facts, or bill of exceptions in the rec
ord, this court can only look to thu
indictment and charge of the cour
which being found correct, the judg
ment is Naturalization, J;
Herrera VS.. the state; from Wilson
county.-Appeal from a conviction
for aggravated assault and battery
Although the record contains NJ
proper statement of facts, yet if W,
should consider the one therein con
tanned we should hold the evidenc
sufficient to support the verdict, ant