Perez v. Garza

Decision Date18 February 1880
Citation52 Tex. 571
PartiesENEMENCIO PEREZ v. JUAN GARZA.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

FROM Starr county. Motion to affirm on certificate. The opinion sufficiently states the facts involved in the following objections to the motion to affirm without reference to the merits, filed by appellant, viz.:

“In this cause comes appellant, Enemencio Perez, by counsel, and submits to the court that the motion of appellee to affirm the judgment of the District Court of Starr county on the certificate accompanying said motion and said certificate, was not sufficient in law to authorize the affirmance prayed, because of the following, among other reasons, apparent of record:

First. It does not appear from said certificate, nor the record accompanying the same, that the said judgment was entered at a legal term of the District Court of Starr county, in this: that said term is not shown to have commenced at the time authorized by law.

Second. It does not appear from said certificate, nor the record accompanying the same, that the notice of appeal entered in the cause was entered during the term of court at which said judgment was rendered, or was given in open court.

Third. It does not appear from said certificate, nor from the record accompanying the same, when the alleged appeal was perfected, or that it was perfected at all.

Fourth. The said certificate fails to conform to the requirements of law, in this: that it fails to state when the alleged appeal was perfected, if at all.

And for further cause why said motion should not be granted, the said Enemencio Perez shows to the court that the said alleged appeal was by him abandoned as informal and insufficient, and that in lieu thereof he has since filed his petition for a writ of error upon the judgment in this case in the District Court of Starr county, to wit, on the 5th of January, 1880, and therewith his supersedeas bond in error as required by law; that citation in error upon said petition and bond was issued on the 14th of January, 1880, and on the same day executed and served upon defendant in error, Juan Garza, and that on said 14th of January, 1880, plaintiff in error filed his assignment of errors thereupon; all of which will more fully appear from the transcript of said petition, bond, writ, and the return thereon, and the said assignment of errors hereto attached and made part of these objections; and the said Enemencio Perez submits to the court that said cause is now pending in this court on writ of error returnable to the next term of this court, and may not be lawfully disposed of otherwise, and he prays that said motion be refused.”

The judgment of the court below was for $2,251.

Scott & Levi, for appellant.

Waul & Walker, for appellee.

MOORE, CHIEF JUSTICE.

The appellee, Garza, filed transcript, on certificate, containing a copy of a judgment of the District Court of Starr county, in his favor, against appellant, Perez, rendered March 24, 1879; notice of appeal from this judgment by appellant April 4, 1879; (the day on which the clerk certifies the term of the court at which the judgment was rendered ended;) also a copy of an appeal bond executed by appellant and filed with and...

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24 cases
  • Lauder v. Heley
    • United States
    • North Dakota Supreme Court
    • 18 Marzo 1913
    ...41 Ind. 531; Olsen v. Birch, 1 Cal.App. 99, 81 P. 656; Gregory v. Obrian, 13 N.J.L. 11; Gimperling v. Hanes, 40 Ohio St. 117; Perez v. Garza, 52 Tex. 571; Prob. Ct. v. Gleed, 35 Vt. 24. Private parties cannot make binding contracts with respect to the tenure or compensation, fees, etc., of ......
  • Keel & Son v. Gribble-Carter Grain Co.
    • United States
    • Texas Court of Appeals
    • 29 Diciembre 1911
    ...in error in the execution of their judgments procured in the court below. This, it seems, has been held to be a sufficient reason. Perez v. Garza, 52 Tex. 571. The judgment dismissing the former appeal was rendered in February, 1911, and the motion for rehearing was overruled March 2d follo......
  • Ward v. Scarborough
    • United States
    • Texas Supreme Court
    • 11 Enero 1922
    ...the time allowed by law, though a subsequent writ of error was then pending before the court. Insurance Co. v. Clancey, supra; Perez v. Garza, 52 Tex. 571. Plaintiff in error further contends that, inasmuch as both these cases on writ of error were submitted to this court at the same time, ......
  • Harding v. City of Raymondville
    • United States
    • Texas Supreme Court
    • 15 Marzo 1933
    ...S. W. 664. The authorities also announce the rule that a party cannot resort to both methods of appeal in order to delay the case. Perez v. Garza, 52 Tex. 571; Knox v. Earbee (Tex. Civ. App.) 31 S. W. Where an appeal is abandoned and a writ of error is sued out which would unduly delay the ......
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