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23 Tex. 261

Hill v. Baylor

Texas Supreme Court

Decided July 1, 1859

Texas Supreme Court · decided 1859-07-01

Error from. Fayette. Tried below before the Hon. James H. Bell. This was an action of trespass to try title to a tract of land, brought by Walker K. Baylor and another, the defendants in error, against the plaintiff in error and others. The petition alleged, that the plaintiff in error was a non-resident of the state; it was filed on the 21st day of October, 1856.

Key passage — most relied on by later courts

““It is scarcely necessary to say, that objections to the admissibility of evidence not taken below, and which, if taken, might have been obviated at the trial, cannot be first urged in this court, as a ground for reversing the judgment.””

quoted by 1 later decision, including Estate of Brown v. Masco Corp.

“The sheriff's return upon the writ shows that publication had been made for four successive weeks. The return does not appear to have been made until after the expiration of four weeks; that was after the first day of the term.”

quoted by 1 later decision, including Mitchell v. Reitz

Good law ✅— No negative treatment on recordhow we know

Decided 1859-07-01

How this case has been cited

Cited by 14 later decisions — most recently March 2002

14 state decisions

601859186018701880189019001910192019301940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Wheeler, C. J.

¶1The sheriff’s return upon the writ shows, that publication had been made for four successive weeks. The return does not appear to have been made until after the expiration of four weeks. That was after the first day of the term. But no action was taken until the next succeeding term; and the plaintiff did not proceed to final judgment until the second term. If the service was not made sufficient time before the return term of this writ, it was good for the succeeding term. The defendant had until the succeeding term to answer. It is not perceived, that the ease is different from that of personal service, less than five days before the return term.

¶2The statement of facts, incorporated in the judgment, seems to be a compliance with the statute. (Hart. Dig., Art. 782.)

¶3It is scarcely necessary to say, that objections to the admissibility of evidence not taken below, and which, if taken, might have been obviated at the trial, cannot be first urged in this court, as a ground for reversing the judgment.

¶4There is no error in the judgment and it is affirmed.

¶5Judgment affirmed.

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