The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-05-20


Last Resort Fresh Opinions From the
FJrum of Justice-The Lawyers Wade
Mecum and tho Citizens Legal Library.
COURT OF APPEALS.
Davenport ct al. VS.. Millers Bros, from
Bal county. This is motion to dismiss
the court below and because the CLERKS
certificate to the transcript is insufficient in
1t stating that alp the proceedings are
contained in the transcript, and both these
rrouads being full ysustained by the record,
and being sufficient, the appeal is dismissed
Teney Pierce VS.. the State, from BOsuue
county The state attorney moves TO dis.
mss the appe ii, Tor, among other reasons
because the recog aizance fails 10 state that
defendant has been convicted of an offence
as required by Art, So, Z. q. r, which de-
feet, existing in the recognzance, this court
h no jurisdiction. Appeal dismissed.
". ". Pearce VS.. the State; from Bosque
county For the same reasons as given
above in reney Pearce VS.. the State the
appeal in this case is dismissed. Appeal
dismissed.
Kerr VS.. Mitten, from Navarro county.
Appellee moves 10 dismiss this appeal be-
cause the appeal bond on which this appeal
is prosecuted is executed by the same
suretie,, aud no others, as the appeal bond
on which the appeal ir, m the justice to the
county court was prosecuted, this cause
havins originated III the justice court
Held: [ y IA the authority OF Heidenheimer
Bros. VS., Lane and Bedsoe no Texas Law
Review, this motion is overruled and the
bond held to be sufficient. Motion over
ruled.
Wilson vs. the State, from Wilson county.
This is motion TO dismiss the appeal be-
cause, among other reasons, the appeal
BOND is not conditioned that appellant shall
"perl1rm the judgment; sentence, and de-
cree OF this court" and pay all such dam
ages rs sd d court may award against him, "
but IS conditioned that he shall "pay all
such damages as said court may 'demand"
against him. (Rev. Stat, Art, l40l) Held
The bond IS sufficient. Demand was
p Obably intended for award, and is sub
santially the same thing. Motion over
ruled.
Duren VS.. the State from Burleson county.
Appellant was convicted OF a misdemeanor.
anu his punishment assessed at $40 fine and
twenty -iour hours imprisonment, and it is
not ad judged that he be confined in the
county Jail for said time. Held; There be-
ing no such final judgment as Is required
W, NJ. Pearce W.. the State, from BOsque
county. The appeal in this case was per-
iected in 1881, and should have been filed
here at the last term OF this court, and be.
cause OF such failure, the states's attorney
moves TO dismiss the appeal. Held, appel
liant having no control over the transcript,
he should not be he'd responsible Tor tn's
neglect or failure, and the motion TO dis
miss is overruled.
kiser Il Ullman vs. the State, from DetN
county. AT the last Ty lie: term thus cause
was reversed and dismissed, and upon tax.
ing w the costs against the parties, the
clerk taxed all such costs against appellants
as were incarred by them. They now COM
plain hat the costs were wrongtully taxed,
and ask relaxing OF the costs. Held, the
costs AS taxed, are fully warranted by the
law, and the motion is overrued.
Day ct al vs.. Heating from
johnson county. This is a motion
to dismiss because the applicant
failed to ask of the judge trying the cas-
below without jury 10 give his conclu-
sions of law and fact, and therefore there
was no legal basis for an assignment Of
error. Held; RUE q does not demaad a
dismissal OF cause because OF applicants
failure to demand of the judge trying the
case without II jury to state his conclusions
OF law and facts in writing. Motion over
ruled.
SUPREME COURT.
Franco Texas Land company VS.. Laigle,
from Parker county, Opinion by Willie,
]. The charte. Of appellant declaring that
IT'S principal Office tor the transaction of
business shall be at Weatheriord, that its
business might also be transacted at New
York, Paris, France, ETC., gave the COM
pany no right to Observation-Disclosures meetings
outside of the state OF Texas, consequently
the proceedings held outside of
the state were absolutely null
and void, A de iacto authority
could not therefore arise where there has
been absolutely no election or appointment,
OF. what is equivalent to one, that is null
ID void, and where there has been no OPP
Grafton of the right TO exercise the office eX'
cept in the very instance where 1t is ques'
toned and where there has been no acqui.
cscenoe in the official acts OF the person
claiming such authority, either on the part
OF the body Tor whom he processes to act or
anyone else. 1t the power of attorney, UNI
det which they endeayor to hold appellee,
was without authority to use il at meeting
held without the state, the presumption is,
that 1t waste be legally exercised, and The
agent transcribed his authority when he
used 1t at a prohibited assembly OF the
stockholders. Affirmed.
Percy VS.. Percy, from Bexar county.
Opinion by Willie, c ]. The general pro-
vision must yield to the special clause so
lar Of the particular class, when the law
makes general provision apparently Tor
all cases and u special provision fora par
hcuar class. When the word citation is
used, a technical suit is always meant.
The court, therefore, erred in rendering
judgment probating the will when parties
named in the petition to probate were not
cited, as the law requires, and were not
present, and as all the heirs we're necessary
parties, and some were not present, the
viii! was improperly probated. Reversed
and remanded.