Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 64
vi, 659 [660] ; 22 cm.View a full description of this book.
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64 4 . PUNDEtSON VS. LOVE.
which to predicate a reversal of the judgment. If the plaintiff
has rights which he has been so unfortunate as to have
failed to present in this record, he will still have the period
prescribed by the statute, within which to bring a new action;
and as he, being the appellant, is the party alone responsible for
the absence of a more intelligible and perfect record, we do
hot conceive that any injustice will be done him by an affirmance
of the judgment.
It is the opinion of the court that the judgment be affirmed.
In this case Mr. Justice LIPscOMB delivered the following
dissenting opinion:
This suit was brought by the appellant to recover a tract of
land to which he claimed title, derived from Thomas W. Blakey,
it being part of the league granted as a headright to the
said Blakey by the government of Mexico, and the controversy
seems to have been, whether the land sued for was embraced
within Blakey's league or not.
From the manner in which the record has been sent up, it
is difficult to understand what was the evidence, or what was
decided in the court below. The bill of exceptions refers to
original papers, a considerable file of which have been sent up
under the following order of the judge:
" It is further ordered by the court, that that the clerk of this
court send up to the supreme court all the original papers
used as evidence by each party."
It is evident that this court, having appellate jurisdiction
only in this case, cannot pass in judgment on the papers so
sent up, because it does not appear that they compose a part
of the record, nor does it appear what, if any, judgment has
been passed on them by the court below.
The order for their transmission was in direct contravention
of rule 5, adopted by this court at the December term, 1846.
There was a bill of exceptions, from which it appears that the
defendant offered in evidence a certificate marked X, objected
to by the plaintiff, and the objection overruled by the court.
* No such certificate, marked X, is to be found in the record, nor
in the original papers. The bill of exceptions further shows
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28571/m1/70/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .