Accousi v. G. A. Stowers Furniture Co.

• Decision Date: 17 May 1905
• Citation: 87 S.W. 861
• Parties: ACCOUSI v. G. A. STOWERS FURNITURE CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

87 S.W. 861

ACCOUSI v. G. A. STOWERS FURNITURE CO.^*

Court of Civil Appeals of Texas.

May 17, 1905.

Error from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Frank Accousi against the G. A. Stowers Furniture Company. Judgment for defendant, and plaintiff brings error. Affirmed.

D. J. Powell, for appellant. Nat. B. Jones, for appellee.

FLY, J.

Plaintiff in error instituted this suit to recover damages resulting from injuries to his wife, Rosa Accousi, incurred by falling into and through a stairway that was not properly guarded with railing. A trial resulted in a verdict and judgment for defendant in error.

On July 11, 1904, plaintiff in error made an affidavit before the district clerk of Bexar county of inability to pay the costs of the writ of error, or any part thereof, or to give security for the costs. The court which tried this case not being in session, the matter was heard before the county judge of said county, and it was decreed that plaintiff in error be permitted to prosecute his writ of error without giving a bond. A transcript was obtained, and filed in this court within 90 days from the time the writ of error was perfected. On December 14, 1904, the writ of error was dismissed by this court, because there was no judgment shown in the record from which the writ of error could be prosecuted. Accousi v. Stowers (Tex. Civ. App.) 83 S. W. 1104. Afterwards, as appears from the present record, on January 14, 1905, the trial court entered the judgment and other orders nunc pro tunc, and on January 21, 1905, plaintiff in error made affidavit before the county judge of Bexar county of his inability to pay costs or secure the same, and, the affidavit being contested, the matter was tried by the county judge aforesaid, and permission was granted to plaintiff in error to prosecute this writ of error without bond. On the same day a petition for writ of error was filed, and defendant in error duly cited. The cause was tried by the district court, and it was in session when the affidavit upon which the writ of error was perfected was filed, and it is the contention of defendant in error that the contest could not be made before any court except that in which the cause was tried.

By the terms of article 1401, Sayles' Ann. Civ. St. 1897, proof of inability to pay costs, which shall consist of the affidavit of the party, may be made before the county judge of the county in which the party resides, or before the court trying the case. In the absence of a contest, the affidavit would be sufficient to entitle the party to an appeal or writ of error without bond. If there be a contest, however, the statute provides that "it shall be the duty of the court trying the case, if in session, or the county judge of the county in which the suit is pending, to hear evidence and to determine the right of the party, under this act, to his appeal." That language is capable of but one construction, and that is, that in case of a contest either the trial court, if in session, or the county judge, can hear the same and determine the right of appeal. If the trial court is not in session, the county judge alone can try the contest; but if the trial court is in session, either it or the county judge may try the same. It is true there are expressions in the case of Graves v. Horn, 89 Tex. 77, 33 S. W. 322, that may be construed to mean that, if the trial court is in session, it alone can try such a contest; but if such ruling was intended, it was not called for by the matter in issue in that case, which was merely whether the proof should be made before the clerk or before the court. The contention that the cause is not properly before this court will not, therefore, be sustained.

The first assignment of error complains of two photographs being admitted in evidence, on the ground, presumably, that it was not shown to be a picture of the stairway down which Mrs. Accousi fell, although the ground of objection in the bill of exceptions is somewhat obscure. The bill of exceptions shows only one photograph was objected to. The statement of facts, which was agreed to by plaintiff in error, shows that Mrs. Accousi swore that the photograph was a correct picture of the place where she was hurt. That was sufficient to render it...