Hillebrant v. Wife

CourtSupreme Court of Texas
Writing for the CourtWHEELER
PartiesHILLEBRANT v. BREWER AND WIFE.
Decision Date01 January 1851

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

[5 Tex. 567]

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...

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8 practice notes
  • Diamond Cattle Co. v. Clark, 1994
    • United States
    • United States State Supreme Court of Wyoming
    • December 23, 1937
    ...when the date is stated in an application filed at the same time, in the summons and in the order for the record. See Hillebrant v. Brewer, 5 Tex. 566. The motion to dismiss will be denied. Defendant in error contends that the certificate to the bill of exceptions is defective in failing to......
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...on error. (R. R. Co. v. Ingalls, 13 Neb. 279; Spencer v. Thistle, 13 Neb. 201; Robinson v. Kilpatrick, 50 Neb. 795; Hildebrant v. Brewer, 5 Tex. 566; Ry. Co. v. Bailey, 7 Ohio St. 88; Humphries v. Spafford, 14 Neb. 488; Bazzo v. Wallace, 16 Neb. 293; Scott v. Spencer, 44 Neb. 93; Darries v.......
  • Weems v. Watson
    • United States
    • Supreme Court of Texas
    • May 10, 1897
    ...to perfect service in the court below upon Gertrude Watson, and then bring up the record. Pasch. Dig. art. 1495; Hillebrant v. Brewer, 5 Tex. 566; Roberts v. Sollibellus, 10 Tex. 352; Summerlin v. Reeves, 29 Tex. 86; Thompson v. Pine, 55 Tex. 427. In the Revised Statutes of 1879, however, s......
  • Summerlin v. Reeves
    • United States
    • Supreme Court of Texas
    • January 31, 1867
    ...it may be that the court will consider the petition for the writ of error and the citation together sufficient. Hillebrant v. Brewer, 5 Tex. 566;Turner v. Hamilton, 6 Tex. 250;Wright v. Williams, 12 Tex. 35;Graham v. Sterns, 16 Tex. 153;Forshey v. Railroad Company, 16 Tex. 516. As to the se......
  • Request a trial to view additional results
8 cases
  • Diamond Cattle Co. v. Clark, 1994
    • United States
    • United States State Supreme Court of Wyoming
    • December 23, 1937
    ...when the date is stated in an application filed at the same time, in the summons and in the order for the record. See Hillebrant v. Brewer, 5 Tex. 566. The motion to dismiss will be denied. Defendant in error contends that the certificate to the bill of exceptions is defective in failing to......
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...on error. (R. R. Co. v. Ingalls, 13 Neb. 279; Spencer v. Thistle, 13 Neb. 201; Robinson v. Kilpatrick, 50 Neb. 795; Hildebrant v. Brewer, 5 Tex. 566; Ry. Co. v. Bailey, 7 Ohio St. 88; Humphries v. Spafford, 14 Neb. 488; Bazzo v. Wallace, 16 Neb. 293; Scott v. Spencer, 44 Neb. 93; Darries v.......
  • Weems v. Watson
    • United States
    • Supreme Court of Texas
    • May 10, 1897
    ...to perfect service in the court below upon Gertrude Watson, and then bring up the record. Pasch. Dig. art. 1495; Hillebrant v. Brewer, 5 Tex. 566; Roberts v. Sollibellus, 10 Tex. 352; Summerlin v. Reeves, 29 Tex. 86; Thompson v. Pine, 55 Tex. 427. In the Revised Statutes of 1879, however, s......
  • Summerlin v. Reeves
    • United States
    • Supreme Court of Texas
    • January 31, 1867
    ...it may be that the court will consider the petition for the writ of error and the citation together sufficient. Hillebrant v. Brewer, 5 Tex. 566;Turner v. Hamilton, 6 Tex. 250;Wright v. Williams, 12 Tex. 35;Graham v. Sterns, 16 Tex. 153;Forshey v. Railroad Company, 16 Tex. 516. As to the se......
  • Request a trial to view additional results

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