The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-05-25

remedy. So0O reward IL YOU can pe ouieu'
claim any interest in the certificate,
as against Vivian and those claiming
under him, and her heirs are bound as
parties by their estopment. 1t fol-
lows that the plaintiffs are entitled to
one-half of the land. The Judgment
of the court of civil appeals is revers-
ed and the Judgment of the district
court of Eastland county is in all
things affirmed. Opinion by Gaines,
A. q.
Sarns VS.. Cruger ct al. The appli-.
cation for writ of error shows that no
motion for rehearing was filed in the
court OF civil appeals as prescribed by
statute and the reasons for the failure
to do so furnished no excuse
for this failure, and that court
refused to consider the motion. lf
the failure TO file the motion had been
shown to have resulted from accident
or cause other than neglect, this court
mig hit consider the application, not.
withstanding the fact that the court
OF civil appeals had not acted on the
motion OF reheAring, but as no such
facts are shown the rule will be ad--
hered to and for it's nonobservance
the application will be dismissed
without consideration of the questions
involved in the case. Opinion by
Stayton, G. j.
Texas and Pacific Railway company
VS.. Sidney Wilson, from Grayson,
The petition for writ of error contains
full statement of the pleadiugs and
other proceedings in tho lower courts,
together with statement of the testi-
mony of one of the witnesses and copi-
Gus extracts of the district judge upon
the facts and the law, and the objec-
tions urged in the court of civil ap--
peals and the action of that court on
those objections. Otherwise there is
no assignment of errors attempted to-
be made to this court and we feel con-
strained to hold that there has not
been compliance with the statute
and the rule upon this subject. When
the rules were adopted it was not
thought advisable to embody in them
the statutes on the same subjects
consequently the rule in regard
to applications to this court for writs
Of error must be considered in connec-
ton with article 1011 of the act of
april Is, 1892.
1t will be seen that the law REQUIRES
that the petition of the applicant
shall follow an allegation of the names
and residences of the opposite parties
"with brief statement of the nature
of his case and the grounds upon
which the writ of error is prayed"
No statement of the pleadings or their
substance is required or proper, unless
it is made so by reason of some issue
upon them being presented to this
court for its decision. Otherwise, q
mere designation OF the nature of the
pleadings or the character of the
action is all that is proper in the
"statement OF the nature of his case.W
Ordinarily the findings of fact by
the court of civil appeals will suffic-
iently advise this court of the merits
of the controversy, so far as they de-
pend upon the facts. A statement of
the evidence, or any part of it, can
not be useful or proper, except as a
part of bill of exceptions taken to
the admission or rejection of testi-
mony or when in extreme cose it may
become material for this court to de.
eide whether or not there was any
evidence in support of given issue
Where it does not otherwise appear
from the record the petition should
show, by appropriate allegations of
fact rel ting to the subject matter of
the controversy, that the case is one
over which this court can exercise jul
risdictiOn. The transcript that &C.
companies the petition will be treated
by this court as a part of it, and may
be referred TO in the petition; but it is
not necessary nor advisable, to copy
into the petition any of the proceed
ings contained in the accompanying
transcript. The purpose of the rule in
regard to motions for rehearing in the
court of civil appeals is to insure the
decision, by that couit, of the very
question intended to be brought before
this court. The law expressly requires
that tine petition shall state 1.-the
ground upon which the writ of error
is prayen.'
1t is likely that the complaining
party will, in every instance, desire to
present to this court every point in
cluded in a motion for rehearing,
made in the court of civil appeals.
Instead of merely copying the
motion for rehearipg or reciting in the
petition for writ of error that Ger.
tain assignments of error were unsuc-
cessfuliy urged in the court of civil
appeals, it is essential that the errors
of that court be distinctly pointed out
in the petition.
The petition in this case does not
contain such an assignment of errors
and the application must therefore be
dismissed. Opinion by Henry, A. J.
Will Remain in Kansas.
TOPEKA, May 18.-Attorney Gen.
eral Little, who attended the meeting