Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-05-19
COURT OF APPEALS.
Synopsis Of the Decisions Rendered at the
Austin Sitting Of the
Court Of Appeals.
Made Up From tho Full ard Official Re-
port Of the Rulings and 0pin-
ions Rendered.
Compiled for the Gazette.

errors. il not indorsed in the manner
required by the rules, and because,no
brief was properly filed in the court
below. See supreme court rules %, u,
25, 20. Appeal dismissed.
| Warren vs.. the State, from Maverick |
county, II is now well settled that
this court acquires Jurisdiction to hear |
aud determine an appeal from the court |
below only when the record shows
afllrmatively that, at the proper stage |
OF the proceedings In the court below,
the appellant gave notice OF his appeal
to this court, and that the same was
properly entered on the minutes OF
the trial court. The transcript In this
case failing to make this affirmative
showing, the appeal Ia dismissed.
Harrison Va. the State, from Jones
county. In addition TO the grounds
upon which the appeal in Warren's
case supra was dismissed the appeal
In this case Is dismissed because the
record fails TO bring up recognizance.
Such recognize lnce Ii an Indispensable
part Of the record, which will In no
case bo considered In its absence. APP
peal dismissed.
Morris w. the State, from Callahan
county. The states motion to dismiss
the appeal in this case is based upon
the ground that the recognlzance does
not show that appellant has been con.
victed OF an Oflense against the laws Of
this state. Appellant was evidently
prosecuted under art. 900 =, c., as
amended by the act of April 4, 1881,
Acts II deg, PIP 1903, l0i). The recog-
nizau ce, however, describes the offense
as "unlawfully herding sheer" Such
description is Insufficient, and the mo-
ton prevails. Appeal dismissed,
Harrison w. the State, from Brown
county. A necessary and indispensa'
BILE element Of an appeal bond or
recogDizauce Is that IL recltes IA a
. condition, ito abide the Judgment of
! the court OF appeals" This Omission 10
e fatal to recogn'2ance, however sutii-
cient II may be ia other respects. The
rCcognizance In this case being INSULT
l. Client In this respect the STATE "a motion
to discuss the appeal prevails. APP
peal dismissed.
Lamb Va. Oliphant & Kelso, from
4. Maverick county. The motion to die
/. miss the appeal In this case Is based
upon two grounds: /. Because no briel
= was filed In the court below as required
a: by art. 1888 OF the Rev. Stats. 2. Be
a. cause the transcript contains no M
signment of errors as required by art
Q. 1887 of the Rev. Stats. Upon the
IL second ground the motion 10 sustained
H. and the appeal Is dismissed.
N. Tue Texas Il Pacific Railway Com
a. pany VS.. Dyer, from Palo Pinto coun
y. ty. The motion to- dismies the appea
recites the fact that the notice of ap
M. peal, was not, so far as the transcrip
"a. shows, mo ed on the docket and entere'
OF record" as required by art. 1887 q
the Rev. Stats, that appellants motto
IN. Of appeal was not In fact "entered {
IN. record,h that part OF the transcriI
~, which states motion overruled I
"' which defendant excerpts and give
nd notice OF appeal to court of appeals,
-, being merely an order noted on tn
"' motion docket, and which was nevC
ns entered OF record. This last ground
sustained by the certificate OF til
on clerk OF the county court. Appeal dii
missed.
- King ct al. va. Frazier, from JAG
va, county. The motion TO dismiss III
appeal in this case Is based upon I'll
M ground that what purports To be
M, transcript Ia not In fact fun and con
m, plete transcript. The clerk of II
trial court, however, certifes und
= his seal that the transcript contain
all the providings in the case. b
hind this certificate the court, In 1
ire Investigation, Will not go. The IN
ton to dismiss the appeal Ia override
Harrison VIZ. the State, from Jon
county. This was u conviction 4
ln- simple assault The punishmel
as' assessed against the appellant WAS
inc fine OF five dollars But in accordan
inc with the previous decisions OF tn
res, court, none of the questions raised {
les, appeal can be considered because Il
ry, transcript fails TO bring up a treco
en- niaance and for that reason the state
OF motion to dismiss the appeal prevail
'lso Appeal dismissed.
" Railway W., Dyer, from Palo Pin
cen county. IL has been correctly he
;, that, as n condition precedent To d
WY prosecution OF an appeal 10 this cou
ila' a motion was made and overruled
ing the court below, and that upon {
'eu, same being overruled the appella
eN' gave notice of appeal in open cou
nus, and that the said motion was proper
Ner entered OF record. The transcri
AN, must show these proceedings afllrl
'h9i atlvely. The transcript In this ca
err fails To show either notice or entry
cry notice of appeal, and the motion
A.es dismiss the appeal prevails.
eA- Railway W.. saul, from Williams
'ous county. For damages 10 fencing a
rem grass burned by sparks escaping FRI
ave appellants engine, The court, sitti
'aci withouta jury, awarded the appel
re- $50 for the fence and $3.50 for the gr,
the destroyed, The latter amount
ier claimed by appellant TO be excessi,
M, re- In cases OF this character when l
nus aggravated, the rule is that the
the lief must be confined TO oompen
enS ton for loss actually q
Noh tanned, and such compensation Is I
Age. measure OF damages. 90 Tex. q
, ~ Upon the showing OF the appellee hi
sly self, while testifying ON the stand,
w, sne was actually damaged only in the 81
i Of 56S40 including the $50 for
n , fences, and the judgsnent was exc
WI sive In the amount OF $lSl.s
MI versed at tho cost OF appellee, anC
here rendered in his favor for S56S
Ordered accordingly.