Another v. Wife

• Decision Date: 01 January 1851
• Citation: 6 Tex. 240
• Parties: THORN AND ANOTHER v. LAWSON AND WIFE.
• Court: Texas Supreme Court

6 Tex. 240

THORN AND ANOTHER

v.LAWSON AND WIFE.

Supreme Court of Texas.

1851.

The act which authorizes attorneys to appear by brief in the Supreme Court means attorneys who are known to the court as members of the Supreme Court bar.

It is the practice of the Supreme Court when a case is called and there is no appearance for the appellee or defendant in error to continue it on the application of the appellant or plaintiff in error, except where the judgment is for money or specific property, and the record bears on its face the appearance that the appeal or writ of error has been taken for delay.

Appeal from Nacogdoches. Motion by appellant to continue.

J. M. Ardrey and Ochiltree & Jennings, for appellant.

LIPSCOMB, J.

When this case was called, on a suggestion that there was no appearance for the appellees, on motion of the appellants it was continued. On a subsequent day the continuance was set aside, on the information that briefs had been sent up and filed by the appellees. A motion has been submitted by the appellants to reinstate the order of continuance, on the ground that the supposed appearance by brief is not such an appearance as is provided for by our statute, (Hart. Dig., art. 2910,) because the briefs have not been sent up by an attorney known to this court and authorized by law to practice in it.

We have no doubt that a fair construction of the statute referred to in authorizing the attorney for either party to send up and file a brief in the case, and when so filed that it shall be considered an appearance, meant an attorney known to this court; and that a brief sent up by a person purporting or assuming to be the attorney of the party, if he is not an attorney of this court, must be disregarded by us, and cannot be received as an appearance.

It has been our practice when a case is called and there is no appearance for the appellee or defendant in error to continue it on the application of the plaintiff in error or the appellant, subject, however, to this exception: if the judgment sought to be reversed is for money or specific property, and the record bears on its face the appearance that the appeal or writ of error was frivolous and had been taken for delay, we have refused to permit it to be continued. Such does not appear to be the character of the judgment in this case The suit, according to the practice in courts of equity, is a bill quia timet, brought by the securities on a bond for the trial of the right of...