Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 14
vi, 659 [660] ; 22 cm.View a full description of this book.
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14 C ALVERT VS. WALKER.
CALVERT VS. WALKE -Appeal from Iarris County.
An affirmance without reference to the merits, because the transcript was not
filed within the time prescribed by law, will not be granted, unless it appear
affirmatively, that the court, from which the appeal was taken, was adjourned
before the commencement of the term of this court, to which the
appeal was returned.
When the transcript of the record is filed by the appellee, before the expirat
on of the thirty days, the rights of the appellant, in respect to the disposition
of the cause, attached, and the record is no longer within the exclusive
control of the appellee.
It is incumbent on a party seeking to enforce so rigorous a rule as the affirmance
of a judgment regardless of the merits, to show, affirmatively, every
fact which is necessary to bring the case strictly and literally within the
provision of the statute.
PERLEY for appellant.
J. W. HENDESON' and ALEXANDXER for appellee.
Mr. Justice WHEELER delivered the opinion of the court.
This cause was tried at the fall term, now last past, of the
district court for Harris county.
The appeal bond was filed on the 12th of December, 1848.
The transcript of the record was filed by the appellee, before
the expiration of thirty days after the commencenlent of the
present term of this court, and he now moves an affirmance
of the judgment, under the provision of the 4th section of an
act to amend certain sections of "an act to organize the Suprelme
Court of the State of Texas." [p. 74, sec. 4.] It appears
that the appellant directed the transcript to be made
out; but that when made out, it was handed by the clerk to
the appellee, by whom it was forwarded, and caused to be here
filed. The appellant applied for it on the 5th instant, but was
informed that the clerk had already given it to the appellee.
IHe thereupon submitted his affidavit, setting forth these facts,
and that "it was not practicable to get the record made out
and forwarded to Austin, by the third day " of the present
term of this court. ITe resists the motion to affirm, insisting
on his right to be heard touching the merits of the case.
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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/m1/20/: accessed May 2, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .