Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 115
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1875.] CROSS v. CROSBY. 115
Opinion of the court.
Maxey & Lightfoot, for appellants.
C. Payne, for appellee.
ROBERTS, CHIEF JUSTICE.-This is an appeal from a judgment
of the District Court on a motion made by appellants
to set aside an execution and sale made under it.
The transcript contains the judgment on the motion,
which recites ''that said motion be and the same is hereby
overruled, and that the defendant recover of the plaintiffs
the costs of this motion, to which ruling of the court the
plaintiffs by their counsel except, and give notice of appeal.
The whole of the balance of the transcript is an agreement
by the counsel of both parties of what are the questions
in the appeal, and of the matters which they deem
necessary to decide them, setting out therein the records
and papers pertaining to said motion, which agreement is
signed by the counsel of both parties, but not approved by
the presiding judge of the court in which the judgment
It is probable that the judgment on the motion was also
intended to be embraced in the agreement, so as to bring
up the appeal upon an "agreed case."
In such case it is necessary that the agreement should
have the " consent and approval of the judge who tried the
cause," with his certificate thereto annexed. (Pas. Dig.,
art. 1516.) *
For the want of a compliance with the statute, we have
no authority to recognize this transcript as containing an
appeal in an agreed case, therefore the appeal must be
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/123/: accessed May 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .