Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-02-13
THE HIGHER COURTS.
Decisions Rendered at the Galveston sitting
OF tho Court OF Appeals.

Decisions Rendered ~ ticNalNesi"h Sith"l
OF tho Court OF Appenis.
Grant & Kinner vs.. Fowzen Bros ap
I peal from wehb Judgment was rendered
( In Justice court November 20, 1884. Mo
: tion for new trial was filed on November
/ 27th, and oyerrulrd December 10. On
I December ID an appeal bond was alud
with aud approved ny the justice. In the
county court the appeal was dismissed
on the ground that the appeal bond was
not uled within ten days from the rem
ditlon Of the Judgment appealed from,
| This court has held that II al appeal bond
/ be- illed with the Justice Within ten days
after the date of an order oyerruliDg a
motion for new trial In the case, II Is
died within the time required by law q
Con Rep. 1910 THIS ruling IL APP
plicahle 10 art 1859 u S as amended by
The act OF April IS, 1883.
But IN this case the motion for new
trial was not acted upon until more than
ten days had expired after the rendition
OF the Judgment Under the statute an
order granting new trial must be made,
II made at all, within ten days after the
rendition OF the Judgment. OR :. 1921,
1922, w. a W. Con Rep. 1870, and
though nothing Is said as to the time
within which the motion may be over.
ruled we are Of the opinion that any rul-
ing or disposition OF the motion, 10 be
valid, must be made within ten d US after
Judgment rendered. II no action is
taken ON the motion for new trial within
the ten days II will be considered as
overrulcd, and party would then have
ten days 10 file an appeal bond In this
case the ten days 10 which the appeal
bond could be died commenced TO run ON
the tenth dag after the judgment was
rendered, and hence the bond was not
hled IN time TO secure an appeal, and the
county court did not err ia Diminishing IL.
Affirmed Opinion by Wilson j.
Reuben Fitzgerald vs. the State, appeal
from CoTell. Appellant was convicted
OF rape, the assault having been made on
the person OF the step-dAughter of his
wife, and the punishment being fixed at
confinement for life. The narrative OF
the victim was fully corrohorated IN
every material particular by the defend
ants wife, whom he placed on the stand.
The court say that there Is nothing in the
record requiring discussion. Affirmed by
White, p. j.
White & Co. ct AL VS.. National Bank,
Galveston, appeal from Galveston. Fri
berg, Kline 4 Co, held note against
White & Co., who resided at Marlin, Tex.
They discounted this note at the bank,
indorsing the same. When due 1t was
presented to the makers at Marlin, Tex,
through the local bank Moore & Co,
the makers, requested the local bank TO
wait few days. There was no protest
for n0n-payment and two days after 1t
was presented the makers, White 6 Co.,
became insolvept and made an assign
ment. Held, that as suit was brought
within sixty DAYS after maturity In the
Justices court the liability of the indors-
ers, Friherg, Klein & Co., was found and
the court did not err In giving Judgment
against them. Affirmed Per Curtain.
Missouri Pacific Railway Company vs..
Wallis Landes & Co., appeal from Gal
weston. The company sent four notices
OF freight received To Wallis & Co., Que
being for sixty-three bales of cotton.
Wallis & Co. sent by Jones, their drav-
man, a check for $Sl6 20, covering the
amount Of freight charges given In the
notices, with Instructions TO deliver the
check to, and receive the freight from the
company. When the freight was called
for the company discovered that they held
no siNtY-three bales " cotton for Wallis
& Co., aud that the notice was error. The
agent OF the company gave the drayman a
due bill In favor OF Wallis & Co. for Sla3,
covering the freight OF siXty-thfee nales.
The neat day tho draymau presented the
due bin 10 the company and said Wallis
4 CO. did not want IL, and
asked for the money The agent gave
the draymAn Sl87 Ia cash and a draft for
the balance The next day the drayman
returned the draft, saying that Wallis &
Co. wanted the money. The amount
was given him in cash. day or two
after this Wallis & Co., on making inquiry
of the company's agent as 10 the freight,
for the tirst time had notice OF the facts
The drayman converted the money,
The court below found the above facts,
and further, that Jones was employed
by Wallis & Co, as drayman only;
he was not authorized TO collect
money for their account, but sometimes
paid To the company small bills, and re-
cciNed from IL small amounts In excess Of
freight charges. II was the invariable
custom of the company 10 return any ex-
cess of freight money sent 10 II TO the
party who came with the money for the
freight Held, that Wallis s Co. were
entitled 10 recover Of the company the
amount paid 20 the urayman. Affirmed.
Fer cnrlam
Lee Perry VS.. the State, appeal from
The statute does not require
he appointment of an attorney TO repre-
sent the defendant when without counsel,
kept in capital cases. Affirmed. Per
MOTION.
Escape--It Is shown by the AFFIDAVIT Of
he sheriff made an exhibit 10 the mo- |
Ion 10 dismiss the appeal, that pend /
ng the appeal, the appellant broke
all with other prisoners and lied, and 1
vas out Of view and custody for about
half an hour, when ne was recaptuied /
bout 700 yards from the Jail aud brought
lack into custody. In answer Il was
hown that there was immediate and hot
'ursuit, and that an adjacent river
topped the flight of the prisoners. The /
scape was not complete and the motion
$ denied.