Talbert v. Barbour
| Citation | 40 S.W. 187 |
| Parties | TALBERT v. BARBOUR et al. |
| Decision Date | 10 April 1897 |
| Court | Texas Court of Appeals |
Suit by W. A. Talbert against Elizabeth A. Barbour and others to set aside a judgment. From a judgment in favor of defendants, plaintiff brings error. Affirmed.
J. E. Thomas, for plaintiff in error. F. S. Bell, for defendants in error.
On account of defects in the citation in error, the defendants in error filed a motion at the proper time to dismiss the writ of error, but at the same time made an unqualified appearance by filing their brief in answer to the assignments of error. The defects complained of would not warrant a dismissal of the writ of error, but would only have the effect of striking the case from the docket. Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153. That such defects can be waived is well settled, and there seems to be authority for holding an unqualified filing of briefs to amount to such waiver. Schmidt v. Wright, 88 Ind. 57; Elliott, App. Proc. § 448; Ricker v. Collins, 81 Tex. 662, 17 S. W. 378; Hayworth v. Rogan, 77 Tex. 362, 14 S. W. 70. We do not, therefore, feel warranted in sustaining the motion to dismiss the writ of error. Nor is it important, in the view we take of the case on the merits, that we should strike it from the docket. The suit was one brought by the plaintiff in error to set aside a judgment rendered against him in favor of the defendants in error at a previous term of the court, solely for an error of law appearing on the face of the record,—the judgment having been rendered upon an acceptance and waiver of process indorsed upon and filed with the petition during term time, in disregard of article 1349 of the Revised Statutes of 1895. The remedy for such error is not a bill of review, such as plaintiff in error sought to avail himself of in this case, but an appeal or writ of error. Since the decision in Seguin v. Maverick, 24 Tex. 526, which seems directly in point, this has been the recognized mode of procedure in this state. Yturri v. McLeod, 26 Tex. 84; Lewis v. City of San Antonio, Id. 316; Schleuning v. Duffy, 37 Tex. 527; Jones v. Parker, 67 Tex. 76, 3 S. W. 222. See, also, Hopkins v. Howard, 12 Tex. 7. It has been held that if a defendant in a void judgment has neglected to avail himself of a legal remedy to vacate it, relief by injunction should be denied him. Railway Co. v. Ware, 74 Tex. 47, 11 S. W. 918; McHugh v. Sparks (...
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...is appeal or writ of error. Schleuning v. Duffy, 37 Tex. 527, 528 (1872); Milam County v. Robertson, 47 Tex. 222, 232 (1877); Talbert v. Barbour, 40 S.W. 187, 188 (Tex.Civ.App.1897, no writ); American Standard Life Ins. Co. v. Denwitty, 256 S.W.2d 864, 869 (Tex.Civ.App.--Dallas 1953), writ ......
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...remedy thus adopted, of course, does not apply in case of "error apparent" on the record (Seguin v. Maverick, supra; Talbert v. Barbour, 16 Tex. Civ. App. 63, 40 S. W. 187; Kidd v. Prince [Tex. Civ. App.] 182 S. W. 725, 730), since the statutes allowing review on appeal and by writ of error......
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Rhoades v. El Paso & S. W. Ry. Co.
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McPhaul v. Byrd
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