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: 693
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PRACTICE IN SUPREME COURT- Continued.
13. Objection for want of proper parties will not he noticed when
first made in the Supreme Court. Hughes v. Roper, 116.
14. On a suggestion of delay, when there is no statement of facts,
nor averment in the petition as to the date of a contract on which the
plaintiff below recovered, the contract will be presumed to have been
executed under a statute which would permit the verdict to stand, and
not under a statute repealing the former law, and which might defeat
the verdict. Gaimmage v. Moore, 170.
15. An appeal under Article 1493, Paschal's Digest, allowing appeal
to persons unable to give appeal bond by giving bond in no more than
the costs and damages of the appeal, does not operate as a supersedeas;
the plaintiff is authorized to sue out such process as will authorize the
sheriff to take possession of all the personal property of the defendant
and perhaps to levy upon lands in other counties. Such appeal does suspend
the power to sell. Ledbetter v. Burns, 508.
16. An order of sale issued pending such. an appeal, confers no
power to sell. ld.
17. The recitation that appellants are unable to give an appeal bond,.
in the bond for costs, etc., is the proper mode of showing that fact, and
of designating the character of the bond. Id.
18. The approval by the clerk is sufficient to perfect the appeal, and
a bond so approved is sufficient unless objected to; and after objection,
if insufficient in amount, the appellate court will allow such defect to
be cured by giving a new bond. Id.
19. It is beyond the power of the Supreme Court to reform a judgment
for damages found by a jury, by giving damages which the jury
failed to assess. Id.
20. Where there is no statement of facts the court will consider such
assignments of error as relate to the sufficiency of the petition to warrant
the judgment. Roundtree v. The City of Galveston, 612.
21. A bill of exceptions serves to perpetuate in the record the ruling
of the court to which the party presenting it excepts; it cannot
supply a statement of facts, however full its recital of facts may be
On the 29th June, 1867, B applied to the county surveyor for a file
upon and survey of one hundred and sixty acres of land, claiming it as
a preemption under the Act November 12, 1866, and stating, in his application,
that he believed it to be vacant, and that he had settled on it
in February, 1866; C filed on the same land in July or August, 1866:
had it surveyed November 1, 1866, and received his patent August 9,
1869. In a suit by B to compel the county surveyor to make a survey
under his file of August 29, 1867: Held,
1st. That the Act of November 12, 1866, cannot be so construed as
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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/m1/701/: accessed July 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .