Cheek v. Rogers
| Decision Date | 31 December 1846 |
| Citation | 1 Tex. 440 |
| Court | Texas Supreme Court |
| Parties | JOHN CHEEK & JOHN W. COLLINS v. JAMES ROGERS |
Writ of Error to Austin County.
When a cause is brought to this court on a writ of error, without any probable good and sufficient reason, damages can be assessed for the benefit of the plaintiff in the court below, in like manner as on frivolous appeals.
This was a suit instituted by Rogers, the plaintiff in the court below, against the defendants upon a joint and several promissory note executed by them in his favor. The defendants pleaded that the note had been given without any consideration. Verdict and judgment was rendered for the plaintiff, and execution issued thereon which was stayed by writ of error, operating as a supersedeas, sued out of the supreme court by the said defendants in July, 1844.
Gillespie, for appellee, suggested this as a case of delay.
Mr. Chief Justice Hemphill delivered the opinion of the court; Mr. Justice Lipscomb not sitting, having been of counsel in the court below.
The plaintiffs in error were defendants in the court below, and the question raised is, whether when a cause is brought up on a writ of error without probable good and sufficient reason, damages can, as on frivolous appeals, be assessed for the use and benefit of the plaintiff in the court below.
We can see no reason for making the distinction contended for between appeals and writs of error.
The process for the removal of causes from the district to the supreme court was for several years known only by the name of appeal, and was as remarkable for its simplicity as for its pervasive energy; embracing in its remedial power all judgments or decrees which could be the subjects of revision. It was without formalities or onerous restrictions. The dissatisfied party, in order to insure his recourse to the appellate authority, was required only to give notice in open court, of his intention to that effect, and this being accompanied with a proper bond suspended the action of the lower court, and devolved the cause on the superior jurisdiction.
By the statutes of 1841, under which the writ was sued out, the appellate remedy was still further enlarged not by extending it to any judgments on which it had been previously inoperative; but modifying the time and modes of removal. Under these statutes the transmission of the cause to the supreme court could be effected; by notice given as formerly in open court or by application to...
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Faulder v. State
...Sec. 26 from obtaining a writ of error. Certiorari was not considered; it was not even mentioned. The court in Hart relied upon Cheek v. Rogers, 1 Tex. 440 (1846), and Luckett v. Townsend, 3 Tex. 119 (1848). In Cheek, the court held damages were available against a party suing out a frivolo......
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First Dallas Petroleum, Inc. v. Hawkins, 05-86-00232-CV
...review has been followed since the beginnings of Texas jurisprudence. Luckett v. Townsend, 3 Tex. 119, 128 (1848); Cheek v. Rogers, 1 Tex. 440, 441 (1846); Moore v. Harris, 1 Tex. 36, 40 (1846). In 1846, Chief Justice Hemphill pointed out that, although in England appeal was the mode of rev......
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Hofheinz v. Wilson
...90 days, but if it is upon writ of error, the record shall be filed within 90 days after the service of citation in error. In Cheek v. Rogers, 1 Tex. 440, the Supreme Court "We can see no reason for making the distinction contended for between appeals and writs of error. "The process for th......
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Rodgers v. Alexander
...of error. This ground is manifestly untenable. This court has uniformly treated the writ of error as a mode of appeal. See Cheek and Collins v. Rodgers, 1 Tex. 440;Smith and Jaynes v. Gerlach and Levenhagen, 2 Tex. 424;Luckett v. Townsend & Moore, 3 Tex. 119; Tucker v. Anderson, 25 Tex. 158......