Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-07-01


motion to dismiss the appeal, because
the Judgment in the record contains
no order that the defendant be com.
mitted to jail until the fine and costs
are paid, nor that cspias issue of the
defendant was not present when the
Judgment was rendered. The grounds
of the motion, az shown by the record,
are we'll taken. Such orders We're
necessary to the rendition Of such a
final judgment as would give this
court Jurisdiction on appeal. There
being no final judgment the motion is
sustained and the appeal dismissed,
So ordered.
Dunn vs. Cole, from Collin county.
The appellant sued the appellee to re-
cover damages for certain alleged
malicious prosecutions instituted by
aud at the instance OF the appellee
against the appellant. The petition
alleged no injury to character and no
recovery was sought upon that ground,
and therefore the appellants bad char
acter could not be proved as evidence
of probable cause. Such proof, how
ever, was admissible in mitigation of
damages. (Whar. Ev. Secs. Asa
Such bad reputation n, however, must
be general, and not confined to par
ticular class OF persons. 1t was proper
to permit the county attorney TO tes'
tify rs to the appellee's statements to
him of the appellants sup.
posed violations Of the penal
laws of the state, and it
was for the jury to determine whether
or not, under the circumstances, the
appellee made a full and fair state.
ment to the county attorney and acted
in good faith in the matter. Cooley
on Forts. 1872 Appellee as a witness,
was asked by his counsel il he acted
upon a malicious motive in making
the affidavit. Appellant objected
that the question called for the con-
clusior of the witness. The court
overruled the objection and the wit
ness answered in the negative. Held,
inadmissible (49 Tex. l42), because the
question was not to any distinct, in.
telligent fact, but sought to draw from
the witness his inference or conclu-
sion as to his correct understanding of
the word malice in such connection.
Reversed and remanded
Forbes vs.. West, from ohnson coun-
ty. This is q motion by the appellee
to dismiss the appeal. The judgment
in the case was for 5000 and for interest
and costs. The interest and costs
amount to $l25. The appeal bond
binds the appellant in the sum OF
$500, which sum is not double the
amount OF the judgment for principal,
| interest and costs. That the appeal
| bond shall be double the amount of
the judgment appealed from is man
dstory provision OF the law. The mo-
ton to dismiss the appeal Is we'll taken
and must prevail. Appeal dismissed
Hodges vs. Peacock, from LGrayson
county. The parties To the suit failed
to agree upon statement of facts, but
within the ten days allowed by the
court each furnished the judge with
his statement prepared. The judge,
however, being engaged in other Of
fetal duties, was unable to prepare
the statement himself within the ten
days. Held, that the appellant, with
out fault, was deprived of a valuable
right, which of itself will reverse the
case. (l5 Ct App, S24.326,) Pending
the appeal in the county court, the
sow in controversy had pigs, and APP
pellee by amendment set up the fact,
and asked recovery of the pigs, in
cTeasing the amount in suit to over
| 5000. Appe liant moved to dismiss the
| appeal on the ground that the amount
was in excess OF the Justices jurisdic-
ton, and appellee again amended. re-
! ducing the value OF the pigs to $3.50,
when the motion to dismiss was over.
ruled. Held, that 1t was competent
for appellee to amend as
TO the number and value OF the
| pigs. The amendment did not violate
the rule that new and independent
action could not be set up in the coun'
ty court on appeal, because the matte
had no existence prior to the appeal
and was but the natural increase OF
the property pending appeal, and but
an enlargement of the cause OF action
originally stated.
Moore vs. the State, from Bosque
county. The assistant attorney-gen
eral files, on be half of the state, his
motion to dismiss the appeal in thi
case, In support of that motion h'
files proper atiidavits OF the officers il
custody of the defendant, setting NJ
the fact that, pending his appeal t,
this court after final judgment haC
} been entered against him in the cour
below, the defendant fleet
ed his escape, and tina
his return to the custod,
l of the law, was not his voluntary &C
; but the result of his recspture. HaV
ing made his escape pending his AZ
/ peal, the defendant voluntarily re
!. moved himself beyond the jurisdiction
l Of the court, and his resrrest did no
:, reinvest this court with jurisdiction
1 The motion prevails and the appeal
n dismissed.
!, Pierce VS., the State, from Johnso
:, county. This was misdemeanor cor
n viction underan information chargin
v the appellant, in the language OF tn
d statute. with using the inhibited Ian
n guage near public street A fine G
five dollars was the penalty imposed
=, The question urged on appeal is the
n there was manifest variance betwee
o the allegata and the probate. TIL
& language was charged to have bee
n used near public street" The pro-
IL showed its use in house whic
10 abutted on the street. Held, tn,
rs there was no variance. Affirmed.
II Coats vs. the State, from Falls coul
II ty. The appellant III this case WI
he convicted of the otiense OF betting