Ewell v. Anderson

Citations

• 49 Tex. 697

Syllabus

<p>1. Affidavit of inability to give appeal bond.—An affidavit by-appellants, that they were “too poor to give the appeal bond required by the statute, conditioned for the. prosecution of the appeal with effect, and performing the judgment, sentence, or decree of the Supreme Court in case the decision of said court should be against the appellants, or to give security for the costs and damages of the appeal, as was required by the statute on motion to dismissHeld, Hot a compliance with the statute (Paschal’s Dig. art. 6180) allowing appeals, upon affidavit by appellant that he is “ unable to give bond and security for costs, as may be required by law.”</p> <p>2. Wrongful dismissal by original plaintiff after rbconVENTION MAY be revised ON appeal.—A defendant who filed a plea in reconvention, setting up facts on which affirmative relief was asked, and against whom plaintiff was permitted to dismiss his suit, and whose plea in reconvention was disregarded in the District Court, has the right, on final judgment therein being rendered in favor of the plaintiff, to have the action of the court revised on appeal.</p> <p>3. Parties.—In an action to foreclose a lien against parties in possession who reconvene, and one setting up a mortgage upon the land and claiming to have taken it without notice of plaintiff’s lien, such mortgagee is a necessaiy party, and it is error to dismiss as to him, and also error to disregard his plea asking affirmative relief.</p>