Shelton v. Jarrell

LATTIMORE, Justice.

There are two appellees. The motion, which is also the affidavit, recited in part here pertinent: “Now comes the appellees ⅜ ⅜ * say that they and neither' of them are able to pay the costs of this appeal or any part thereof or to give security therefor.” It is signed “Milford and Jarrell, ap-pellees, by F. M. Milford.” And the jurat recites, as far as applicable: “Personally appeared E. M. Milford who says * * * that the facts therein stated are true and correct.”

Article 1866, R. S. (1925), provides: “If the party against whom the costs are adjudged shall make affidavit,” etc., and in this connection we read article 24, R. S. (1925), that any affidavit necessary or proper to be made by a party to a civil suit “may be made by either the party or his agent or attorney.”

All the parties securing issuance of the mandate without the payment of costs must make the affidavit. Hambleton v. Dignowity (Tex. Civ. App.) 213 S. W. 957. The vice of this affidavit is that no one attempts to say he is attempting to act as the agent of Jarrell. Milford swears that Jarrell is a pauper, but some one must act in the matter by Jarrell’s authority, and the record inust so inform us.

The .motion is overruled..