The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-05-29
THE HIGH COURTS.
Syllabus Of Some Recent and Import"
ant Decisions,
Rendered by the supreme and Appel
late Courts at Austin.
later, sting and Invaluable TO Lawyers
,urRENEcauRT.

ncL,pnan county. OpiuiOn by wiIlie, @,
Arpell,e moved to strike OUT the state
un1t facts In the record. First, Broauiu
N contains dssdu aud ceftincr.eh OF Authrn'
ticaticn and registration, aud VIII Win
ia certificate OF proOae ana certificate OF
COMES thereof are set out In full IN said
abatement. Second Because the inter-
rugA,Vnrs 10 Ger
answers Of these Wl,Lrs,s,r ,trt-et ga
the certificate ol the notary before "hom
the aus Sers were taken, here copied III luli.
Upon Gil examination OF the Statement OF
i,rts We ma tnst u IN subject 10 All Toe oD'
/ octlons taken In the motion ans directly IN
vIoluuon OF rules "a. ~ 20, "A and 80 vi tnis
court. The only question Tor us % CON
bldsr then IL; What penalty should br en-
iorc.d iu the present case for suon bfehch
OF the rules OF this coufR IL wouloi ol
nfufss, he within the powv! OF TINS cOurt
60 strike the statement nom the record
but We d. not feel disposed 10 enforce 90
sever penalty In the present case. we
shine, however, that tue costs OF tue entire
ftHtemSnt, as well as OF this motion, be
CHARGED 10 the appellants, aud judgment
acc irdineiy will be rendered no matter
wat may be the hlal disposition OF the
q. use. Hereafter tue fue viii be more
ritij enforced, and upon motion OF the
appelsss unless some peculiar circum'
stanc-a requiring that the Objectionable
pspers should De brought before
INF. court, statement OF the
Los made up by the parties IN
violation OF the iules OF this court, Will ps
r.Iiu ca from the transcript, and will not
t,rcIs-dsd AS isyor!ng any portion OF the
reoor1 OF the cause.
ieaTns W.. Pvndefgast ct al; from Rob
svison county. Opinion by Willie, C. J
Our statutes provide that when an appeii'
.ant 8 unable TO pay tne costs OF an appeal,
or give security therefor, that he may DC
allowed TO prosecute the appeal by making
proof oi his liability 10 pay the costs on
aay par. thereof. This proof is to be made
bsijrc the county Judge OF the county
whore such party resides, OF before tue
court trying the case, and Is 10 consist OF
the a;liGAyit oi the party making II, stating
his inability TO pay the cOtts. Rev. stats.
ar. IiOi They do not, Va positive termi
REQUIRE tnst the aihdavit SEAL ne made ana
sworn 10 before the county luige oi tht
court trying toe cause, nut II Nas htld by
this court, In Woodbridge w. Roller 10.
ItGss, i52) that where tue affidavit Nus
made oeiore any otner otlicSr tire county
iudge must certify that tue TACT required ~
b. verified Dy the all 1ayii, h al been proved
before him. IL was further held that the
AFFIDAVIT and the certificate OF toe county
Judge must be filed with the clark OF the
county IN whicn the case 10 tiled ia time Ia
ppriect the appeal. OF course II tue proof
ant not the county Judge, there must be
some evidence in the record thpt the facts
REQUIRED 20 be shown by the aitdsvits had
bre.. established before the court. 10 the
pres- MT case there Ii in the record an aii-
davit in proper form sworn TO BY
sppellaa, before notary public, Butt. Is
nut c failed ~ bya county lud2e, nor
conlt n + ave been made In the court trying
l.e cause, as that court had adjourned tor
the term sAveral days before the date OF the
affidavit How this paper found its way
into Ine ilss OF the court 10 Dot disclosed by
tne reooYu. A statute so Particular IN its
requiem nts as to the mode OF perfecting
an sppes'' cannot stsaav;, DO satisned by oy
fore notary, and not passed upon
In any tanner by the officers to whom the
law COMMITS the trust OF hearing and de.
teriniH'ng the proof upon which the appeal
ia 10 be allowed. 1t grants the privilege OF
Iingating In this court without securing
tn, officers Of the court payment tor their
service rendered in the causs, privilege
TO DO enjoyed under certain circumstances,
and In manner expressly provided by the
statute, and ITS provisions In these respects
must bs substantially pursued. They have
not been com piled with in this case, and
the appeal Is dismissed.
Sssrs and wife vs.. jenkins; from Bosque
county. The motion to dismiss the wril OF
the pgtitiou and bond tor writ oi error was
tiled in August, 1852, but no citation issued
uDtl ilY l6 1853, alter O lapse OF term OF
s,ie ocur;. aud besides, said petition does
nut n.!-ge the residence cs defendauts III
errtr, nor pray for citation - issue To him.
ssoOrd, Because .probaSleamou OF cosld
vaY no, fixed by the clerk, and the boou IL
NOT In conformity to law. The record b ar
irr the motion ont. the appeal is dismissed.
Moore and wife vs.. Whltcomt; iron
Limestone county. The motion TO dismies
in this cause is based upoD the ground that
tho cpuus i for appellant Jailed 10 illo any
b.ief ia the court below ten day before the
first Gay OF tie assignment TO when the
carse oelongs, aud the motion being borne
out ia fact, IL granted, and for this reason
Toe .prr.l "a dismissed.
Cram Va. Hogan; from McLennan county.
The motion To dismiss is based upon Two
grounds. First, because appellant has
10 ade no appeal BOND; and second, because
he hiss not made proof OF his inaoiiity To
nav costs ~ the manner required by law,
aud u appearing that there is no evidence
tbn. tbs paupsrs oath WAS made in open
CONT. o. sunmitted 20 the district or county
ludgr. the motion IS granted and the ap'
peal dismissed.
House et al. VS.. Whit worth; from Bosque
comfy. Among other grounds set forth
in the motion 20 discuss, the appellee re-
bond gwen IN the cause on appeal 10 signed
by out one surety, which. upon Inspection
leiry foand true, ~ fatal and the writ oi
error must, therefore, be dismissed. >,
Watson VS.. Miller Bros. from Bill
county. The sction TO dismiss ibis appeal
Ia based upon the ground that this court
bEn 90 jurisdiction by reason OF the faci
that 40 such anal iudgmen, has
been rendered in the cour,
beloy as from which an appeal
viii ne. Held: The judgment is not hnal
A. a portlon o. the case still rem aims In the
distric, court 10 adjust the equities between
parties defendant. The motion Is granted.
Appeal dism ssed.
&c. Walker vs.. l.. A. Stroud ct al, from
L.mps.nne county. This motion 70 die.
miss the appeal bond 10 based on several
grounds, all OF which arc fatal TO the c.se;
but one IN particular requires Dismissal OF
ths case. The judgment appealed from 10
ia favor OF l.. A. Stroud, and the appeal
bond is signed by him. De not being .
vslid surety, and there being but one other
Oh tae bond, 1t is iosutiicient, aud for
tl.'s reason the appeal must be dismissed.
0ammsge We. Powell; from Nolan conn
~. Opinion by Stavtou, ]. TIE land III
-,ntyove'ey is located In Nolan county.
Powell settled on II Decem hero 1855, aud ap-
plIed for IL as homestead donation october
*. 1881. Ga April II. 1881, Gammsge loca-
It'd the unlocsied balance Of q headlight
O. rtiii cate on tract Of lsnd embracing the
100 acres In dispute and the tract was pat
ontod under that location October IL, 1881.
0emmage contends that the land was not.
within thirty days prior TO the time Powell
rnade his application, public unappropria-
I'd domain and therefore, his application
W Ineffective. Powell contends, and 60
s,loees. that the location and patent Of ep
SeilSut vss void because ct the time OF the
Ioootion and patent the land ~as IN Nolan
soSnfv md Withdrawn from appropriation
- iocatiou Of land certificates BY the lot
~ iuiv IL. 1919. General Law. p. IS HELD,
~ S0oO. Rev. Stats. intsnded 70 profect
ieS6 non location for the period
alfne liz oocupl cY. or eettle.