Brown v. Torrey
| Decision Date | 01 January 1858 |
| Citation | 22 Tex. 54 |
| Parties | JOSEPH M. BROWN, ADM'R, v. JOHN F. TORREY AND ANOTHER. |
| Court | Texas Supreme Court |
This court can only revise the judgments of the district court, for errors apparent upon the record.
It cannot, therefore, act upon a question of fact, such as the death of one of the parties previous to the judgment in the court below, presented for decision, for the first time in this court, by affidavits.
If the fact be as alleged, the remedy is in the district court that rendered the judgment, and not by writ of error to this court. 5 Tex. 286;24 Tex. 468;28 Tex. 732.
ERROR from Comal. Tried below before the Hon. Thomas J. Devine.
Hancock and West, for plaintiff in error.
Chandler and Turner, for defendants in error.
The plaintiff in error seeks to reverse the judgment, on the ground that one of the plaintiffs below was dead at the date of its rendition, and submits to this court affidavits to prove the truth of this assignment of error. But the fact of such death does not appear by the record. It was not suggested, or otherwise brought to the notice of the court below; and nothing can be more perfectly clear, than that this court can only revise the judgment of the district court for errors apparent upon the record. To entertain the question of fact for decision, for the first time, in this court, as a ground for reversing the judgment, would be plainly violative of the constitution, which confers upon this court, in reference to the judgments of the district court, appellate jurisdiction only. This is a court strictly of appellate jurisdiction, and cannot, therefore, take cognizance of questions of fact affecting the judgments of the district court, which have not been presented to that court for adjudication. The plaintiff in error has plainly mistaken his remedy. If the fact be as alleged, his remedy is in the district court that rendered the judgment, and not by a writ of error to this court. Weaver v. Shaw, 5 Tex. 286. This case is plainly distinguishable from those in which affidavits have been received by this court, upon the question of its own jurisdiction. Harris v. Hopson, 5 Tex. 529;Dial v. Rector, 12 Tex. 99;Martel v. Hernsheim, 9 Id. 294. The judgment is affirmed.
Judgment affirmed.
To continue reading
Request your trial
-
Wilson v. Thomason Funeral Home, Inc.
...at the summary judgment hearing, but a record of that hearing is not before us and therefore we may not consider it.(3) See Brown v. Torey, 22 Tex. 54 (1858); see also Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979). We find nothing in the record demonstr......
-
Wilson v. Thomason Funeral Home, Inc.
...at the summary judgment hearing, but a record of that hearing is not before us and therefore we may not consider it.3 See Brown v. Torey, 22 Tex. 54 (1858); see also Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979). We find nothing in the record demonstrat......
-
Et Ux. v. The City Of Huntington.
...New; For& Central 22. R. Co., 44 N. Y.;465; The Aurora Branch R. R. Co., v. Grimes, 13 111. 585; Owings v. Jones, 9 Md. 108; Brown v. Torrey et al, 22 Tex. 54; Dyer v. Talcott. 16 111. 300; sate of Maryland for use, &c, v. Ihe B. & 0. R. R. Co., 24 Md. 84; Maxfield v. Cincinnati, Indiana an......
-
Hart v. Mills
...bearing on this point, pro and con, are as follows: Johnson v. Robson, 27 Tex. 526;Dial v. Rector, 12 Tex. 99;Harris v. Hopson, 5 Tex. 529;22 Tex. 54;27 Tex. 5;Martel v. Hernsheim, 9 Tex. 294. [The counsel reviewed these cases.] That affidavits will not be received in such a case to oust th......