Eggenberger v. Brandenberger
| Decision Date | 07 June 1889 |
| Citation | 11 S.W. 1099 |
| Court | Texas Supreme Court |
| Parties | EGGENBERGER <I>v.</I> BRANDENBERGER. |
West & McGown, for plaintiff in error. Marshall Fulton. for defendant in error.
The defendant in error brought this suit against the plaintiff in error to recover a tract of land, and sued out a writ of sequestration. The only assignment of error which is copied in the brief is, in effect, that the court below had no jurisdiction of the cause, for the reason that the petition upon which the case was tried appears to have been filed in the county court, and not in the district court. The file-marks upon the petition, the affidavit, and the bond for sequestration are all dated the same day, and are signed "WILSON HEY, C. C. C. M. CO., Tex." The abbreviation may be taken to mean "Clerk of the County Court of Wilson County, Texas." The jurat to the affidavit, and the writ of sequestration, are signed Elsewhere, throughout the transcript, the name of the officer is signed as clerk of the district court. The official designations following the signatures to the file-marks on the petition, affidavit, and bond are doubtless clerical errors. It may be a fact that Mason is one of the counties in which the offices of clerk of the district court and clerk of the county court may be held by one person, and it is probable that, at the time this suit was filed, Hey was the incumbent of both offices. That the petition, bond, and affidavit were actually filed, — that is, deposited in the office of the clerk of the district court, — there can be no doubt. This is shown by the fact that Hey, as clerk of the district court, issued the writ of sequestration, in accordance with the petition and affidavit, two days after they were filed; also by the fact that the defendant filed his answer to the petition in the district court, and by the further fact that that court heard the case, and gave judgment for the plaintiff. It has been repeatedly held by this court that the objection to a paper for want of a file-mark, which has obviously been placed in the custody of the clerk, and acted upon by the court below, comes too late when urged for the first time in this court. Knight v. Holloman, 6 Tex. 153; Holman v. Chevaillier, 14 Tex. 337; Turner v. State, 41 Tex. 549. Besides, courts take judicial notice of the pleadings in a cause, (1 Whart. Ev. § 325,) and are presumed to know the signature of...
To continue reading
Request your trial
-
Texas Securities Corp. v. Peters
...1927, no writ hist.); Waggoner v. Edwards, 68 S.W.2d 655 (Amarillo, Tex.Civ.App., 1933, no writ hist.); Eggenberger v. Brandenberger, 74 Tex. 274, 11 S.W. 1099 (1889); Major v. Loy, 155 S.W.2d 617 (Eastland, Tex.Civ.App., 1941, no writ hist.); Cowan v. State, 356 S.W.2d 170 (Austin, Tex.Civ......
-
Pennsylvania Fire Ins. Co. v. Wagley.
...Traylor, 31 Tex. 124; Austin v. Clapp, 5 Tex. 133; Cartwright v. Chabert, 3 Tex. 261; Brack v. McMahan, 61 Tex. 2; Eggenberger v. Brandenberger, 74 Tex. 274, 11 S. W. 1099; Burdett v. Marshall, 3 Tex. 24; Messner v. Lewis, 20 Tex. 221; Porter v. Miller, 7 Tex. 468; Hill v. Cunningham, 25 Te......
-
Askey v. Power
...Life Ins. Co. v. Moore (Tex. Civ. App.) 10 S.W.(2d) 178, 179; Kelly v. Gibbs, 84 Tex. 148, 19 S. W. 380, 563; Eggenberger v. Brandenberger, 74 Tex. 275, 11 S. W. 1099; Edgar v. McDonald (Tex. Civ. App.) 106 S. W. 1135; O'Connell v. Rugely, 48 Tex. Civ. App. 456, 107 S. W. 151; Yarbrough v. ......
-
Waggoner v. Edwards
...before it, Humphreys v. Young et al. (Tex. Civ. App.) 293 S. W. 655, and also of the contents of said pleadings, Eggenberger v. Brandenberger, 74 Tex. 274, 11 S. W. 1099; Blair & Hughes Co. v. Short (Tex. Civ. App.) 271 S. W. 199; 7 Enc. Ev. 999, and the facts admitted by such party need no......