The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-07-02


John II. Blain va. f. e, MacManus,
from Nueees County; Walker, p. !.
Adopted. Where the defendant Is a
citizen of this State, and not a non
resident, and is served with notice
and certified copy of the plaintiffs
petition in conformity with Arts. 1890,
1921, 1882 and 1888, Rev. Stats, the
truth Of the facts stated in the officers
return Of service, supported by his sf-
iidavlt, not being contyoverted, their
verify must be assumed as undtsputed
facts, and plaintiff was entitled to
judgment by default for want OK au
answer upon the call Of the appear
ance docket or at any time after ap
pearance day. Cart. 2S2, Rev. Stats).
The competency and NEUTRALITY-SUSPICIOUS.
OF the party performing the aerVice Is
presumed. Zones VS.. Jones, 60 Texas,
4JD. Where defendant was cited De-
cember 10, 1888, the appearance day
being December Ii, 1883, and no filed
no answer until judgment by default
was asked for and rendered nearly
three weeks atterWard, and during the
same term OF court, the Judgment was
prima facie, regular and was not ar
footed by an answer filed after its rom
dition, unless for causes requiring il
to be SGT aside. The validity OF The
service doeg not depend upon the Of
fetal character OF the person who
served the notice, nor upon any other
test Of qualification than that pre-
scribed by statute. IL is within the
discretion OF the court TO permit the
| notice to be withdrawn from the re-
cord to enable the person who made
the return on it to correct any inform
| atty therein. (Arts, 1893 snd 1889, Rev.
Stats). The service having been actu-
ally made Oh the defendant, 1t was
not said By reason of the failure TO
have had an attidsvit attached
TO the notice setting forth the required
facts, and tho defendant was bound to
take notice OF the return that was
made and OF the order OF court SLOW
ing the notice to DO withdrawn. Gree
man on Judg. Sec. 1859 The statute
requiring the return TO DO attached to
the notice is merely directory and the
omission to so attach it would not, of
ITSELF, warrant the court in setting
aside the judgment. Cartwright VS..
ChoberL, 3 Texas, &l.) Affirmed.
A. A. Burck VS.. u. II. Burroughs OF
al, from Milan County. Walker, p. j..
Adopted. Appellant filed motion
against q. f. Burroughs and his suro-
ties on an appeal bond given by him,
filed In the County Court OF Milan
| County, a7king thai court TO render a
Judgment against the sureties for the
amount Of tho judgment appealed
from in the case Of Burck VS.. Bnr-
roughs from said County Court to the
Court of Appeals, In which o superse-
IDEAS bond was given, The Court OF
Appeals dismissed the appeal because
the bond misdescribed the Judgment
appealed from and adiudgou the cost
against appe,lees. After the tlinR of
the manda,e Of the Court OF Appeals
in the lower court this motion was
made and upon motion by appellees
was dismis sed In the lattOr court.
Held: When the appeal was deter
mined in the Court of Appeals she case
itself was finally determined unless n
review of 10 waR afterWard had by writ
OF error. Tho only iu' isdiction which
the County Court could properly eSer-
else over IL was TO enforce and give eli
feet TO the mandate Of the Court OF
APR ;als. The dismissal of the sp
peal left the judgment in force
without change, and without any pow
or or jurisdiction IN the County Court,
on the record as IL stood, TO open the
case for the ,purI 1se Of making any
further or additional orders or entries
in the cause, other than to enforce
md give effect to whatever the man
date may have directed.
If the Judgment had boon affirmed
on appeal, the court below could only
have made the orders necessary TO
carry out the Judgment of the Appel
late Court, and the cause th0n should
DO dropped from the docket. A por-
tori would tho same result ensure
where the Appellate Court determines
that the cause has not been properly
appealed, end for that reason dis.
misses IL from its docket at the costs
. OF the appellant and his sureties, thus
leaving the parties in statu quo.
The statutes provide In what cases
, the Appellate Courts shall render
Judgment on appeal or writ OF error
bonds. But the judicial system does
not seem TO contemplate renewal Of
|, the jurisdiction Of the Inferior court
, over the case for any purpose other
than to carry out the manuate Of the
! Appellate court, except where the
. judgment below is reversed, and ever
7 In that case, where it may properly bC
: done, the Appellate Court viii mo-
send the ease back for further pro
ceedings, but will render such judg
, ment as the court below ought I;
have rendered. In cases where, upoI
the face Of the record, Judgment may
| DO rendered against the sureties upoi
the appeal or writ OF error bond, sucl
, Judgment must be rendered. by TIT
, Appellate Court and not the court
quo. II in cases where the appellee Il
! entitled 10 redress or damages by rea
son OF q breach OF the conditions y
the bond, and his remedy cannot b.
, enforced by tho Appellate Comt, IN
: needs muet seek his remedy by sui
I upon the bond In some Appropriat
form Of action, Affirmed.