Patterson, Judge. Will Morris was convicted of burglary, and appeals. Affirmed. Mann Trice, for the State.
DAVIDSON, J. This conviction was had for burglary. This conviction is cogently sustained by the evidence, and the charge of the court correctly applies the law to the facts. There are no bills of exceptions in the record. Motion for new trial was not made, and no assignments of error filed in the case. The judgment is affirmed.
THOMAS v. STATE. (Court of Criminal Appeals of Texas. Nov. 11, 1896.) Appeal from
district court, Milam county; E. L. Anthony, Special Judge. John Thomas was convicted of arson, and appeals. Affirmed. Mann Trice, for the State.
HENDERSON, J. Appellant was convicted of arson, and given 10 years in the penitentiary, and prosecutes this appeal. There is no statement of facts in the record, and the only exception taken was to the action of the court in overruling appellant's motion for a new trial. We have examined the record in the case, and we find no errors requiring a reversal of the same, and the judgment of the lower court is accordingly affirmed.
ABANDONMENT.
Of contract, see "Contracts."
Of homestead, see "Homestead."
Of possession, see "Adverse Possession."
Of wife, see "Divorce."
ABATEMENT AND REVIVAL.
Where the death of a defendant is suggested,
his heirs may be cited in, though they reside
out of the county. Wadsworth v. Cardwell
(Tex. Civ. App.) 367.
Instructions on a trial under Mill. & V. Code,
5370, reviewed and held proper.-South v. State
(Tenn. Sup.) 210.
Evidence on a trial under Mill. & V. Code, §
5370, held sufficient to justify conviction.-South
v. State (Tenn. Sup.) 210.
The sufficiency of the evidence held a question
for the jury.-Huff v. Commonwealth (Ky.) 1046.
stated in the certificate.-Thompson v. South-
ern Building & Loan Ass'n (Tenn. Ch. App.)
704.
Acknowledgment before a person related to
the grantor or interested in the conveyance is
not void, but voidable.-Cooper v. Hamilton Per-
petual Building & Loan Ass'n (Tenn. Sup.) 12.
A deed of a married woman, not acknowledged
in the manner required by statute, is a nullity.-
Garcia v. Illg (Tex. Civ. App.) 471.
Wife's acknowledgment to a deed is conclusive
of the facts therein stated, except in cases of
fraud, mistake, or imposition. Summers
Sheern (Tex. Civ. App.) 246.
An unacknowledged deed held not binding on
the grantor's creditors, though recorded.-Ala-
ble & Stone Co. (Tenn. Ch. App.) 1004.
bama Marble & Stone Co. v. Chattanooga Mar-
ACQUIESCENCE.
Estoppel by, see "Estoppel."
See, also, "Appearance"; "Continuance"; "Dis-
missal"; "Limitation of Actions"; "Stipula-
tions"; "Venue."
Evidence held to justify a verdict of guilty. Against infant, see “Infants."
State v. McLeod (Mo.) 828.
By or against railroad companies, see "Rail-
roads."
For breach of covenant, see "Covenants."
For death by wrongful act, see "Death."
Of witness as ground for continuance, see "Con- For injuries to passengers, see "Carriers."
tinuance"; "Criminal Law."
At crossing, see "Railroads."
ACCOMPLICE.
Testimony of, see "Criminal Law."
ACCORD AND SATISFACTION.
See "Compromise and Settlement"; "Payment."
ACCOUNTING.
Between partners, see "Partnership."
ACKNOWLEDGMENT.
Of assignment, see "Assignments for Benefit of
Creditors."
Where a blank for the rate of interest is
filled up after the deed is executed, with the
consent of the grantor, it need not be reac-
knowledged.-Brim v. Fleming (Mo.) 501.
Evidence held insufficient to show that an ac-
knowledgment of a deed by a wife was ob-
tained by the fraud of the husband. Thomp-
son v. Southern Building & Loan Ass'n (Tenn.
Ch. App.) 704.
Evidence held insufficient to show that a wife
was not examined apart from her husband, as
v.37s.w.-72
to servant, see "Master and Servant."
For partnership accounting, see "Partnership."
For price of goods, see "Sales."
In forma pauperis, see "Costs."
Injunction pending suit, see "Injunction."
On appeal bond, see "Appeal and Error."
On guaranty, see "Guaranty."
On guardian's bond, see "Guardian and Ward."
On liquor dealer's bond, see "Intoxicating Liq-
On notes, see "Bills and Notes."
On policies, see "Insurance."
On replevin bond, see "Replevin."
On subscription to stock, see "Corporations."
Particular actions, see "Assault and Battery";
"Assumpsit, Action of"; "Attachment"; "Cred-
itors Suit"; "Death"; "Divorce"; "Eject-
ment"; "Libel and Slander"; "Malicious Pros-
ecution"; "Mandamus"; "Money Lent"; "Pro-
hibition"; "Quieting Title"; "Quo Warranto";
"Replevin"; "Specific Performance"; "Tres-
pass"; "Trespass to Try Title"; "Trover and
Conversion."
To cancel contract, see "Cancellation of Instru-
ments."
To determine adverse claim, see "Quieting Ti-
tle."
To foreclose lien, see "Mechanics' Liens";
"Vendor and Purchaser."
To recover money lost in gaming, see "Gaming."
To set aside fraudulent conveyance, see "Fraud-
ulent Conveyances."
When commenced, see "Limitation of Actions."
bond, and a suit against other sureties on a
A suit against the sureties on a county judge's
bond payable to the commissioner's court, cannot
be joined.-Dunson v. Nacogdoches County (Tex.
Civ. App.) 978.
An action cannot be maintained as one for fore-
closure of a mortgage lien where a sale of the
property by plaintiff to defendant is shown in an
action for conversion.-Houston, E. & W. T. Ry.
Co. v. Garrison (Tex. Civ. App.) 971.
An action on a bond executed in forcible entry
and detainer is one for tort, within the statute
exempting property from execution where the
judgment is based on a contract.-Gaines v.
Toles (Indian Ter.) 946.
Where a bank, holding special tax bills as
collateral security, authorizes suits by the
payee, he can sue thereon in his own name, as
trustee, within Rev. St. 1889, § 1991.-City of
Springfield, to Use of Central Nat. Bank, v.
Weaver (Mo.) 509.
Where a purchaser of mortgaged property
agrees with all concerned to pay to a representa-
tive of the mortgagees, such representative may
sue for the price.-Geist weidt v. Mann (Tex.
Civ. App.) 372.
Administrators, to whom a note is made pay-
able for property of the estate sold and con-
veyed by the heirs, may maintain an action to
enforce a vendor's lien without joining the gran-
tors.-McClure v. Bigstaff (Ky.) 294.
ADJOINING LANDOWNERS.
See, also, "Boundaries."
Petition for damages for the destruction of
property by fire communicated from the accident-
al burning of adjoining property, held not to state
Where the owner of land, after sale on ex-
ecution, abandoned it, and possession was tak-
en and held by the purchaser and his grantees
for 40 years, the heirs of the former owner can-
not question the title.-Austin v. Colson (Ky.)
486.
Supp. Sayles' Civ. St. art. 1395a, relating to
the fencing of land, has no application where
the land owned by one is adjacent to and not
surrounded by that claimed and fenced by au-
other.-Green v. Boon (Tex. Civ. App.) 187.
In forma pauperis, see "Costs."
In garnishment, see "Garnishment."
of claim for lien, see "Mechanics' Liens."
Of juror to impeach verdict, see "New Trial."
AFFIRMANCE.
See "Appeal and Error."
See "Principal and Agent."
AGGRAVATED ASSAULT.
See "Assault and Battery."
AIDER BY VERDICT.
Defects in indictment, see "Criminal Law."
a cause of action.-Hughes v. City of Lawrence- See "Intoxicating Liquors."
burg (Ky.) 257.
ADMINISTRATION.
See "Executors and Administrators."
As evidence, see "Criminal Law"; "Evidence."
ADVERSE POSSESSION.
See, also, "Limitation of Actions."
Action to determine adverse claim, see "Quiet-
ing Title."
As defense in trespass to try title, see "Tres-
pass to Try Title.'
Adverse possession, to ripen into a title as
against a married woman, must have com-
menced before the coverture.-Garcia v. Illg
(Tex. Civ. App.) 471.
Requisites to establish title by adverse pos-
session, as against a cotenant, considered.-Gar-
eia v. Illg (Tex. Civ. App.) 471.
ALIENATION.
Restraint of power, see "Wills."
Dedication, see "Dedication."
ALLOTMENT.
Of dower, see "Dower."
ALTERATION OF INSTRUMENTS.
Alteration of a policy by the insured held ma-
terial to vitiate the policy.-Phoenix Ins. Co.
v. McKernan (Ky.) 490.
An alteration of contract for the sale of land
by inserting the amount of the balance due
held immaterial.-Kelly v. Thuey (Mo.) 516.
Instrument held not invalidated by immaterial
alteration.-Kelly v. Thuey (Mo.) 516.
AMENDMENT.
Of pleading, see "Pleading."
Of return of summons, see "Process."
Killed or injured on track, see "Railroads."
Shipment by carrier, see "Carriers."
Owner of a vicious dog held not liable to one
putting his hand within the inclosure where
the dog is kept, and who is bitten by him.-
Badali v. Smith (Tex. Civ. App.) 642.
See, also, "Certiorari"; "Exceptions, Bill of";
"New Trial."
From justice, see "Justices of the Peace."
In criminal cases, see "Criminal Law."
A writ of error, failing to state the name
and residence of a defendant in error, held suffi-
cient if the facts may be ascertained from the
record.-Curlin v. Canadian & American Mortg.
Co. (Tex. Civ. App.) 484.
An assignment based on the insufficiency of the
evidence will not be reviewed unless made a
ground for new trial.-Childress v. Smith (Tex.
Civ. App.) 1076.
Error in instructions cannot be reviewed
where the instructions were not brought to the
notice of the lower court on motion for new
trial.--American Ins. Co. v. Austin (Ky.) 678.
On a writ of error bond under Mill. & V.
Code, § 3898, where no supersedeas is sought
the sureties are liable for costs only.-Knoxville,
C. G. & L. R. Co. v. Leabow (Tenn. Sup.) 197.
Jurisdiction.
Appeal dismissed, the amount involved not be-
ing sufficient to give jurisdiction.-Meade V:
Warring (Tex. Sup.) 598; Same v. Cook, Id.;
Same v. Boone, Id.; Same v. Jones, Id.
An order sustaining a plea of privilege as to
some defendants, and dismissing them from
the suit, held not a final judgment.-Wadsworth
v. Cardwell (Tex. Civ. App.) 367.
A judgment in a justice court for costs is
not appealable.-Rea v. Raley (Tex. Civ. App.)
169.
A mortgagee whose interests are injuriously
affected by the decree on enforcement of a
mechanic's lien may appeal therefrom.-Ragon
v. Howard (Tenn. Sup.) 136; Montague v.
Same, Id.; Catter v. Same, Id.
A judgment which fails to dispose of the is-
sues joined between some of the parties is not a
final judgment, and an appeal will not lie there-
from.-Caldwell v. Bryan (Tex. Civ. App.) 335.
Where two claims are submitted by the
pleadings, and the verdict and judgment do
not mention one, no appeal will lie from the
action on such claim.-First Nat. Bank v. Van-
der Stucken (Tex. Civ. App.) 170.
Under Rev. St. 1889, § 5500, an appeal may
be taken from an order dissolving an injunc-
tion while a motion for assessment of damages
is pending.-Joplin & W. Ry. Co. v. Kansas
City, Ft. S. & M. Ry. Co. (Mo.) 540.
An order directing an allowance as to a sheriff
as receiver to be retained until further orders is
not a final judgment. O'Mara v. First Nat.
Bank (Ky.) 266.
Where a judgment determines the rights of
only one of two defendants, it is not final and
appealable. Cook v. Fore (Tex. Civ. App.) 970.
A writ of error will not lie from an inter-
locutory order refusing to dissolve an injunc-
tion.-Belcher v. Steele (Tenn. Sup.) 135.
Where defendant pleads payment, and inter-
poses a plea in reconvention for $100 damages,
more than $100 is in controversy.-Winder v.
Weaver (Tex. Civ. App.) 376.
Where notice is given and bond filed, defect-
ive because not payable to all the appellees, the
jurisdiction of the appellate court attaches, even
as to the appellee not named.-Wadsworth v.
Cardwell (Tex. Civ. App.) 367.
Thirty days within which to give an appeal
bond, on the entering of a decree nunc pro
tunc, held to run from the date of the entry.-
Lillard v. Mitchell (Tenn. Ch. App.) 702.
Guardian ad litem is exempt, under Rev. St.
1895, art. 1408, from bond on appeal.-Simon v.
Blanchett (Tex. Civ. App.) 346.
Under Rev. St. 1895, tit. 30, c. 19, art. 1408,
a guardian ad litem is not excused from giving
bond on appeal from a court of civil appeals to
the supreme court.-Daniels v. Mason (Tex. Sup.)
1061.
In the absence of unreasonable delay, the
court may permit a new bond to be filed after
an appeal dismissed for insufficient bond. -
Wadsworth v. Cardwell (Tex. Civ. App.) 367.
Practice in general.
Practice in the court of civil appeals, as to
assignments of error and supersedeas bond, de-
termined.-Patrick v. Laprelle (Tex. Civ. App.)
An appellant who fails to perfect his appeal,
or whose appeal has been dismissed, may take a
second appeal within the time within which ap-
peals are allowed.-State Nat. Bank v. Card-
well (Indian Ter.) 103.
An appeal may be allowed and perfected in
vacation from an order refusing to vacate the
appointment of a receiver.-State ex sel. St.
Louis & K. R. Co. v. Hirzel (Mo.) 921.
Parties.
Where foreclosure is decreed against a sur-
vivor of community, she is a necessary party to
a writ of error by co-defendants, claiming the
land free from liens.-Curlin v. Canadian &
American Mortg. Co. (Tex. Civ. App.) 484.
Where a necessary party dies after petition
and bond filed, without any effort having been
made to cite her, the writ will be dismissed.-
Curlin v. Canadian & American Mortg Co. (Tex.
Civ. App.) 484.
Assignment of errors.
An objection that the court had no jurisdic-
tion will be considered on appeal without an as-
signment of error.-Richardson v. Knox (Tex.
Civ. App.) 189.
Error in finding that a bond for title was ex-
ant's grantor held not an error of law so as to
ecuted by the common source of title to defend-
enable the court of civil appeals to review with-
out an assignment of error.-Searcy v. Grant
(Tex. Sup.) 320.
An assignment of error in submitting a cer-
tain issue of fact does not question the law
submitted on the issue.-Galveston, H. & H.
Ry. Co. v. Burnett (Tex. Civ. App.) 779.
An assignment of error embracing several
rulings together is too general.-Eustis v. City
of Henrietta (Tex. Civ. App.) 632.
Assignments that the verdict and judgment.
are erroneous without specifying error will not
be considered.-Engleman v. Deal (Tex. Civ.
App.) 652.
An assignment of error in refusing an in-
struction because already given, does not ques-
tion the correctness of the instruction.-Galves-
ton, H. & H. Ry. Co. v. Burnett (Tex. Civ.
App.) 779.
Where appellant's transcript is apparently
sufficient, the appeal will not be dismissed on
motion.-Davis v. Day's Adm'x (Ky.) 158.
The clerk should include in one transcript
such parts of the record as he is required to
copy for either party.--Davis v. Day's Adm'x
(Ky.) 158.
A statement of facts not approved and signed
by the trial judge is no part of the record.-
Meyer v. Mattes (Tex. Civ. App.) 963.
Where a failure of appellant to procure a
statement of facts was caused by neglect of ap-
pellee's counsel, the judgment will be reversed.
-Meyer v. Mattes (Tex. Civ. App.) 963.
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