Sanders v. Benson

8 Citing cases

  1. Cox v. Gafford

    26 S.W.2d 412 (Tex. Civ. App. 1930)   Cited 4 times

    If made before the court trying the case, the decisions uniformly hold that the affidavit must be made, or brought, before the trial judge while on the bench holding a session of court. See Graves v. Horn, 89 Tex. 77, 33 S.W. 322; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S.W. 659; Harwell v. Southern Furn. Co. (Tex.Civ.App.) 75 S.W. 888; Wood v. St. Louis, etc., Co., 43 Tex. Civ. App. 590, 97 S.W. 323, 324; Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435; Fletcher v. Anderson (Tex.Civ.App.) 145 S.W. 623; Rhodes v. Coleman, etc., Co. (Tex.Civ.App.) 185 S.W. 555, 556; Owens v. First Texas, etc., Co. (Tex.Civ.App.) 23 S.W.2d 444. And several of our Courts of Civil Appeals have gone to the length of holding that the record must disclose the fact that proof was made before the trial judge while on the bench holding a session of court, or else the appeal will be dismissed for want of jurisdiction.

  2. Owens v. First Texas Prudential Life Ins. Co.

    23 S.W.2d 444 (Tex. Civ. App. 1929)   Cited 2 times

    However that may be, the requirement is that if the court be in session the proof shall be made before the court; and although the affidavit of the party is sufficient, in the absence of contest, this clearly means that it shall be presented to the judge on the bench, while holding sessions." See also Rhodes v. Coleman-Fulton Pasture Co. (Tex.Civ.App.) 185 S.W. 355; Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435, 436; Sidoti v. Railway Company, 31 Tex. Civ. App. 131, 79 S.W. 326, 327. It was also held by the two cases last cited that the order approving the affidavit must be entered of record "showing that the action taken was the action of the court."

  3. Oliver v. Swift Co.

    220 S.W. 234 (Tex. Civ. App. 1920)   Cited 2 times

    Under such circumstances, our jurisdiction has never been made to attach. Graves v. Horn, 89 Tex. 77, 33 S.W. 322; Spell v. Cameron Co., 56 Tex. Civ. App. 547, 121 S.W. 515; Bargna v. Bargna, 123 S.W. 1143; Smith v. Queen City Lumber Co., 129 S.W. 1145; Washington v. Haverty Fur. Co., 136 S.W. 832; Fletcher v. Anderson, 145 S.W. 622; Wilkins v. St. L. S. Ry. Co., 56 Tex. Civ. App. 587, 120 S.W. 1104; M. P. Ry. Co. v. Cheek, 159 S.W. 427; Ridling v. Fannin County, 190 S.W. 251; Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435. It is accordingly ordered that the appeal be dismissed.

  4. Phillips v. Phillips

    203 S.W. 77 (Tex. Civ. App. 1918)   Cited 12 times

    The motion in this case was directed to the trial court, and the proof was submitted to the court and acted on while in session. Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435; Smith v. Oil Co., 85 S.W. 481; Wood v. Railway, 43 Tex. Civ. App. 590, 97 S.W. 323; Sidoti v. Railway Co., 35 Tex. Civ. App. 131, 79 S.W. 326; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S.W. 659. In the last-cited case, the Supreme Court said:

  5. Morrison v. Brooks

    189 S.W. 1094 (Tex. Civ. App. 1916)   Cited 5 times
    In Morrison v. Brooks, 189 S.W. 1094, it was held that such an affidavit was not invalid because made by only one of the two appellants in the case.

    Appellee contends, in effect, that as the record discloses that the affidavit in question was made during the term of the court at which the case was tried, and before the judge who tried it, and fails to disclose that it was made in open court, it does not comply with the requirements of the law, and is insufficient to confer upon this court jurisdiction to entertain the appeal and revise the ruling of the trial court. Among others, cited by appellee in support of his contention, are the cases of Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435, and Fletcher v. Anderson, 145 S.W. 622, decided by the Courts of Civil Appeals for the Second and Seventh Districts, respectively. These decisions seemingly sustain the view taken in the present case by the appellee, but we are of the opinion that the cases cited by said courts, and upon which their decisions are based, do not authorize and support the rulings made.

  6. Ridling v. Fannin County

    190 S.W. 251 (Tex. Civ. App. 1916)   Cited 4 times

    It has been frequently decided that it must affirmatively appear from the record that the statutory requirements for perfecting an appeal have been followed. Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435, and cases there cited. Other cases might also be mentioned in which similar holdings are announced, but we deem it unnecessary.

  7. Wilder v. Houston T. C. Ry. Co.

    150 S.W. 492 (Tex. Civ. App. 1912)

    It is apparent from the foregoing that the appellant has not complied with the provisions of the statute. Wooldridge v. Roller, 52 Tex. 452; Hearne v. Prendergast, 61 Tex. 628; Graves v. Horn, 89 Tex. 77, 33 S.W. 322; Wood v. St. L. S.W. Ry. Co., 43 Tex. Civ. App. 590, 97 S.W. 323; Spell v. Cameron Co., 56 Tex. Civ. App. 547, 121 S.W. 515; Wilkins v. St. L. S.W. Ry. Co., 56 Tex. Civ. App. 587, 120 S.W. 1104; Accousi v. Stowers Furn. Co., 87 S.W. 861; Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435. Our attention has been called to no statute providing for correction or amendment in this court of the proceedings in forma pauperis on appeal.

  8. Fletcher v. Anderson

    145 S.W. 622 (Tex. Civ. App. 1912)   Cited 8 times

    We are of the opinion that the making of the affidavit under these circumstances was making proof before the court trying the case." In the case of Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S.W. 435, the Court of Civil Appeals at Ft. Worth, speaking through Justice Speer, held an affidavit insufficient, even though it had the indorsement thereto of the judge trying the case, showing that the same had been approved by him, the record showing that the date of the approval was during term time of the court was insufficient to support the appeal, in that there was nothing in the record showing that the court had acted on the affidavit in open court or as a judge, and in dismissing the appeal in that case uses this language: "The most that can be said in the present case is that the affidavit was approved by the judge trying the case at a time when the court may or may not have been in session.