Mann v. Thruston

1 Dallam 370

• Court: Texas Supreme Court
• Decided: January 15, 1840
• Docket: No. XIII
• Status: Published

Opinion

JONES, Justice.

The appellant’s, counsel moved to reverse the judgment of the district court upon the ground of insufficiency of testimony, and that no fact appeared by the record to have been proved upon which the jury could found a verdict. No exceptions seem to have been taken and no cause for error assigned by the appellant’s counsel in the district court. It was clearly the duty of the appellant to bring up the facts by a bill of exceptions, or otherwise, from the district court, showing that the judgment was rendered upon slight testimony, against evidence, or contrary to law, otherwise the court must regard the verdict as being without attaint. In Davis v. Packard, 7 Peters, 282, it was decided, as it had been in several instances previously, that the Supreme Court “could look only to tbe record, to ascertain what was decided in the court below. The only question before the court was, whether the judgment was correct.” The record in this case shows no intimation that the appellant was dissatisfied with the judgment, save the simple act of appealing, which was granted as a privilege of right. No objection was made to the evidence, if any was introduced, and if the judgment was permitted to go by default, or upon the statement of the appellee’s counsel, the appellant must suffer by her supineness. The defendant in the court below can not come up here to show wrong in the plaintiff, when she was more in error herself. The right to attaint the verdict must be considered as waived by the omission of the plaintiff in error to file her exceptions in the court below at the time of the rendition of the judgment.

The motion is overruled and the judgment affirmed with damages and costs.

Affirmed.