Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-06-04
COURT OF APPEALS.
Synopsis of Decisions Rendered at the
Austin Sitting Of the Court
Of Appeals.
Made Up From the Full and Official Re
port Of the Rulings and Opinions
Rendered.
Compiled FOR the Gazette.

fhelan d 20. va. Wiley q Botson,
from Dallas county. Appellees on
February Is, 1884, fled their applica-
ton under articles 1888, 42S7, 42ss and
1889 Of the Revised Statutes, to sup
ply, restore and reinstate Judgment
which they alleged had been recov-
eredlby them against appellants May
Ia, 1879, the record of which judg-
ment, they averred, was destroyed by
fire February 4, 1850. Appellants In.
terposed by special exception, the stat
ute Of four years Limitation which
exception the court overruled. Held,
error, the general statute, TART. 1907,
IL. 5 applies to a proceeding like
this, and four years bars the right of a
party to avail oft. Reversed and dis.
missed.
Findlay vs.. Loves, from Baylor
county. 1t was agreed between the
parties to this suit when Ii was first in
stituted that all testimony which
would tend to throw light upon the
issues In controversy, would bs ad-
mitted. This agreement was oral, and
not in writing. Under this agreement,
the appellees proposed to prove the
contents of written instrument by
parol, without first accounting for the
loss or the destruction of the same.
Objection to this proposed evidence
was made and overruled. Held, that
II was discreet onsry with the trial
court TO recognize or reject such an
oral agreement. No abuse Of such dis
erection is apparent in this case. At
firmed.
Elser Va. Pierce, from Wise county.
Malice and want OF probable cause
must both concur TO support a charge
of malicious prose cution, and neither
alone Is sufficient. If 1t be malicious
and unfounded, but there was an alb
eence of probable cause for suing out a
writ of attachment, actual damages
only can he recovered. Petition fail.
ing to allege that the attachment was
sued out without probable cause, is
obnoxious to special exception ,Gattack-
ing its sutficiency as demand for eX-
emplary damages. Actual damages
recoverable for wrongful levy Of attach
ment, are such only rs are the actual,
natural pToximate and legal result of
the wrongful act. Revised and re-
manded.
HUMPHREYS VS.. the State, from Ken
dali county. 1t is error for the trial
court to give in charge the law of q
question not raised by any issue ia the
case. Upon the subject ofalibi the court
charged as follows: IAN alibi l., when
an ofiense has been proven to have
been committed upon o certain date
and at u certain place and the evidence
shows that at that time the accused
was at some other place than that
where the testimony shows the offense
to have been committed, go remote
from it rs that it would have been Inn
possible for him to have been the per-
son who committed the offense, and
hence, If the jury have reasonable
doubt as to whether the defendant was
the person who was seen to have been
in comfort with the stolen horses or
who traded them to II. you will &C
duit.n Held insufficient. Reversed
and remanded.
Burnett ct al. vs. State, from Medina
county. The bond in this case was in
valid, because 1t obligated the princi
pal TO appear at a term OF court moi
there authorized by law. Again, the
Judgment nisi is insufficient, because
1t fails to state that the same will bt
made final unless at the next term o
court good cause be shown why the
defendant did not appear. Reversed
and dismissed.
Chawning We. Schwartz, from VII
barger county. Article lao OF thu
Rev. Stats. provides for the election o
a special county judge, when the reg
ular Judge fails to appear at the tim'
appointed for holding the court, or l
/. nlN nv
willing to hold said term. But sucf
statute does not authorize such election
in the case OF vacancy in such office
and the peremptory resignation of tn,
= regular Judge, properly fled, TO TAX
effect instanter, operates u
create such vacancy, whether o
not such resignation has been passeC
upon and accepted by the commission
er's court, and the commissioner
court alone can fill such vacaLcy unit
the next general election. See Arts
1887, 1918, 1919, r s., and Const. Art
V. Sec o. The election OF the speoia
- Judge in this case was unauthorized
and all his acts IA such were utilities
Reversed and remanded.
= Segura VS. the State, from McMullel
county. The appellant in this cas-
was convicted OF murder in the secon'
degree, his punishment being alike
at confinement In the penitentiar
for twenty years The principal oil
ieclions urged to the conviction
attack the rulings Of the court .upo
the admission and rejection OF ev
= dence. The bills of exceptions, how
ever, present no question that has nc
been passed upon before by this court !
former decisions, and we must mol
i. that in every ruling upon that quei
ton the action of the court was correc
l The charge OF the court was unexccel
y tionable, especially in view of the la