Bingham v. Waterhouse

Citations

• 32 Tex. 468

Syllabus

<p>■ 1—An administrator who occupied the attitude of defendant in proceedings in the Probate Court, and who, under Art. 1460 of Paschal’s Digest, had appealed to the District Court from the order of the Probate Court, had no right to appear in the District Court and dismiss his appeal; because, when the case reached the District Court it stood there for trial de novo, and the appellant occupied in that court the same attitude of a defendant that he did in the Probate Court, and as such was impotent to dismiss the case. It was error, therefore, for the District Court to dispose of the case by dismissing the appeal at the instance of such an appellant.</p> <p>3—If by dismissing his appeal the appellant meant that he had no defense, then the District Court should have affirmed the judgment of the Probate Court, and should, also, in conformity with the provisions of Art. 1356 of Padchal’s Digest, Save entered against the appellant a judgment for fen per cent, per month on the value of the property, which the order • appealed from had required him to (deliver to the appellee.</p>