Thompson v. Anderson
| Decision Date | 13 November 1891 |
| Citation | 18 S.W. 153 |
| Parties | THOMPSON v. ANDERSON. |
| Court | Texas Supreme Court |
Sims & Wright, for plaintiff in error. J. A. B. Putnam, for defendant in error.
The motion to dismiss the writ of error, on the ground that the citation does not show when the petition for writ of error was filed, and on the ground that it does not give the description of the judgment contained in the petition for writ of error, cannot be sustained, further than to strike the cause from the docket for want of proper citation in error; but this will not defeat the right of plaintiff in error to have proper citation hereafter issued and served, if he has not otherwise lost that right. The statute (Rev. St. art. 1394) prescribes what the citation in error shall contain, and the courts have no power to disregard its provisions when a defendant in error does not waive them, but, in proper time and manner, insists upon their enforcement. It appears that the judgment which plaintiff in error seeks to have revised was rendered on December 16, 1889, and from that judgment an appeal was perfected in time to be returnable to the term of this court which began on the first Monday in October of that year. That appeal was perfected by giving a cost-bond only, and was never further prosecuted. Petition for writ of error, with bond for costs, was filed on November 3, 1890, and after service of citation, before referred to, the transcript was filed in this court within the time in which transcripts from Delta county on writs of error perfected to this term were required to be; and motion is now made to dismiss the writ of error on the ground that the perfecting of an appeal, although not further prosecuted, bars a writ of error. The statute permits a writ of error to be sued out at any time within two years after the rendition of the final judgment, and does not, in terms, place any limitation on that right, (Rev. St. art. 1389,) though it has been repeatedly decided that failure to use diligence to have citation served after the right to it is perfected will be ground for dismissing the writ. It has been further held that a failure of a plaintiff in error to use diligence to have citation served and transcript returned to the proper term of this court will not defeat the right of a defendant in error to accept service, and bring up the record to a succeeding term, and have an affirmance on certificate. Wilson...
To continue reading
Request your trial
-
Jarrell v. Farmers' & Merchants' State Bond Bank, 9169.
...of article 1016 (now article 1841). But on mature consideration of the holdings of the Supreme Court in the cases of Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153, Davidson v. Ikard, 86 Tex. 67, 23 S. W. 379, and Ins. Co. v. Clancey, supra, that able court was constrained to conclude, and......
-
Chambers v. Grisham
...of the term of the Court of Civil Appeals to which the appeal is returnable. Welch v. Weis, 99 Tex. 356, 90 S. W. 160; Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153; Insurance Co. v. Clancey, supra; Wandelohr v. Bank, 90 S. W. 180; Railway Co. v. Ray, 19 Tex. Civ. App. 416, 47 S. W. 477; ......
-
Reef v. Hamblen
...the right of the appellee to have the judgment affirmed on certificate." In an earlier case, Chief Justice Stayton, in Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153, states the same rule in equally as terse language, viz.: "Under Rev. St. art. 1389, which provides that a writ of error may......
-
Burnett v. Giblin
... ... Black Diamond Coal Co., (Wyo.) 191 P ... 1069; no appellate jurisdiction was acquired in the error ... proceedings, 6373 C. S.; Thompson v. Anderson, ... (Tex.) 18 S.W. 153; Madison v. Matthews, (Tex.) ... 65 S.W. 198. The proceedings in error should be dismissed ... The ... ...