Hillebrant v. Wife

• Decision Date: 01 January 1851
• Citation: 5 Tex. 566
• Parties: HILLEBRANT v. BREWER AND WIFE.
• Court: Texas Supreme Court

5 Tex. 566

HILLEBRANT

v.BREWER AND WIFE.

Supreme Court of Texas.

1851.

It is not necessary for the petition for a writ of error to state the day of the term on which the judgment was rendered. It is sufficient if the term is stated.

Although the petition for a writ of error be not sufficiently definite in describing the judgment, yet if the citation to the defendant accurately describe the judgment, it will be sufficient. The clerk, in issuing a citation to a defendant in error, is not confined, as in the commencement of the suit, to the averments of the petition. (Note 99.)

Where the petition for a writ of error is defective it may be amended in the Supreme Court.

In our practice a writ of error is seldom in fact issued, and is never necessary.

That the court erred in overruling the exceptions to the petition is sufficiently specific as an assignment of error.

That the court erred in overruling the motion for a new trial is sufficiently specific as an assignment of error; but where the ground of the motion for a new trial is simply that the verdict was contrary to law and evidence, the only question is whether the evidence, taken and considered as a whole, sustains the verdict. No particular defect or omission can be insisted upon, nor can any objection be urged which was susceptible of being particularly designated in the assignment.

Error from Jefferson. Motion to dismiss. The defendants in error recovered judgment against the plaintiff in error at the Fall Term, 1850, of the District Court for Jefferson county for the sum of five hundred and eighty-six dollars and fifty cents.

On the 8th day of November thereafter the plaintiff in error filed with the clerk of the District Court his petition for a writ of error, in which he stated the names of the parties to the judgment, the term of the court at which it was rendered, and its amount to be “some five hundred dollars.”

In his petition he assigned as error the ruling of the court--

1st. In overruling the defendant's exceptions to the petition.

2d. In overruling the motion for a new trial.

Upon the filing of the petition the clerk issued a citation to the defendant in error, in which the judgment was correctly described by the names of the parties, the term of the court at which it was rendered, and its amount.

Upon the return of the citation served upon the defendants in error, the transcript of the record was sent up and filed in this court. The defendants in error moved the court to dismiss the writ of error. The grounds of the motion were--

1st. That the petition for the writ of error does not accurately describe the judgment.

2d. That the assignment of errors is not sufficiently specific.

J. B. Jones and M. M. & H. N. Potter, for plaintiff in error.

J. W. Henderson, for defendants in error.

WHEELER, J.

It is objected that the petition does not give the date of the judgment, and that it is variant from it in the amount stated.

In describing the judgment, it was sufficient to state the term of the court, without also stating the day of the term on which it was rendered.

The amount of the judgment is not accurately stated in the petition, but the citation which was served upon the defendants described the judgment with accuracy, and by it the defendants were apprised of the precise judgment sought to be reversed.

The petition is simply the authority to the clerk to issue the citation, and upon its being returned served to prepare a transcript of the record for revision. But in issuing the citation the clerk is not, as in the commencement of the suit, confined to the averments of the petition, but he may refer for greater certainty to the records of the court. And when, as in this case, he has done so, and has issued to the defendants a citation by which they have been apprised of every fact material to enable them to prepare for the trial of the cause in this court, we think the requirements of the law have been substantially complied with.

But if the objection to the petition were of a character which ought to be entertained, no reason is perceived why it might not be cured by amendment without driving the party to the needless expense and delay of proceeding anew.

It is the practice in the Supreme Court of the United States and in State courts to permit writs of error to be amended. (4 Dall. R., 12; Id., 22; 2 S. & R., 351.)

In Alabama it has been held...