Wheeler v. State
| Decision Date | 01 January 1852 |
| Citation | 8 Tex. 228 |
| Parties | WHEELER v. THE STATE. |
| Court | Texas Supreme Court |
There are only three predicaments of fact in which the mode of service of a citation in error is specially declared: if the defendant in error is alleged to reside in a particular county, the citation must be addressed to the sheriff of said county, to be served on the party, if found; if not found, then upon his attorney of record; or if the party be non-resident, then the service is also upon the attorney of record.
It cannot be said of the State that she resides in a particular county, or that she is a non-resident, or cannot be found.
Writs of error having been allowed by law to all judgments in civil cases, if no statutory mode had been provided for bringing them up, it would have been the duty of the court to have framed rules for that purpose; and the statutory directions must be followed so far as they can be made applicable to cases not expressly provided for.
The petition for a writ of error should state the county in which the defendant resides, or that he is a non-resident of the State.
Where the State is defendant in error, it is proper for the citation to direct the sheriff to serve it upon the district attorney; but the validity of the service would not be affected if the citation were directed to be served upon the attorney general and were so served.
The Supreme Court permitted the defendant in error to amend his motion to dismiss by adding an additional ground.
Forty days constitute the general limit under the statute within which a transcript must be filed; if these expire in vacation it will be sufficient that the transcript be filed on the first day of the next succeeding term or the first day for the call of the district from which the case is taken up. The proviso in the 6th section of the act of 1850, (Hart. Dig., arts. 29, 37,) concerning proceedings in the Supreme Court, is inapplicable to the subsequent reorganization of the court. (Note 53.)
Cause may be shown why the transcript was not filed within the time prescribed by law, but not why it was not filed at or before the term to which the writ of error was returnable or the appeal was taken.
The citation on a petition for a writ of error should be issued on the same day on which the petition is filed or at the earliest practicable period thereafter, and should be promptly served and returned.
Error from San Augustine. Petition for writ of error filed February 10th, 1851. Citation prayed to be served on district attorney residing in Nacogdoches county. Citation issued February 27th, served March 19th, and returned after the 7th April, the day on which the term at Tyler, 1851, commenced. The transcript was not filed until the present term of the court. The defendant moved to dismiss the writ of error, on the ground that it did not appear that any proper or legal citation had been issued or that the State had in any proper way been made a party in error in this court. Afterwards the defendant in error had leave to amend the motion, and added, as an additional ground, that the transcript had not been filed within the time prescribed by law.
J. M. Ardrey, for plaintiff in error.
W. Hale, for defendant in error.
This cause is brought up by writ of error from the county of San Augustine.
The defendant in error moved to dismiss, on the ground that it did not appear that any proper or legal citation has been issued which can require the State to appear in this court and defend the writ of error herein, and because it does not appear that the State has in any proper way been made a party in error in this court.
The statute regulating the mode of bringing up judgments by writs of error declares that, upon the filing of a petition for a writ of error, the clerk of the District Court “shall issue a citation, directed to the sheriff of the county where the opposite party is alleged to reside, together with a copy of the petition, commanding him to cite such party to be and appear before the Supreme Court at its next term after the citation is issued, and defend said writ, which citation and copy of petition shall be served by the sheriff to whom it is directed, and shall be returned to the court from which it issued; and all such citations shall be returnable in thirty days after the issuing thereof; and if the party is a non-resident of the State or cannot be found, the citation may be served on the attorney of record.”
From the phraseology of this provision it is manifest that the suing out of a writ of error against the State was not particularly in the contemplation of the Legislature, otherwise direction would have been given for service on the proper officer. There are only three predicaments of fact in which the mode of service of citation is specially declared: if the defendant in error is alleged to reside in a particular county the citation must be addressed to the sheriff of said county, to be served on the party if found; if not found, then upon his attorney of record; or if the party be non-resident, then the service is also upon the attorney of record.
It cannot be said of the State that she resides in a particular county, or that she is a non-resident, or cannot be found; and the directions of the statute as to the service of citation in one or other such state of facts are therefore not expressly applicable when the State is made defendant in error. But the statute declares also that writs of error shall be granted on any final judgment, order, or decree rendered in the District Court, upon the petition of any party interested. This embraces all judgments in civil suits, irrespective of the parties thereto, and consequently judgments to which the State is a party are included. Writs of error having been thus allowed by law, if no statutory mode had been provided for bringing them up it would have been the duty of the court to have framed rules for that purpose, and the statutory directions must be followed, so far as they can be made applicable to cases not expressly provided for.
Now, although it cannot be declared of the State that she is a non-resident or cannot be found, yet there is as much or more reason for service on her recognized officers as there is for service on the attorneys of parties who are absent or are not found.
The State is always represented and acts alone through the agency of her officers. But the attorneys of record may, long antecedent to the grant of the writ of error, have ceased to act for...
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In re Fedex Ground Package Sys., Inc.
...consistent with the express statutory regulations, to help them out so as to perfect and preserve the right.") (citing Wheeler v. State , 8 Tex. 228, 230 (1852) (providing an unprovided remedy after concluding it was "manifest that the suing out of a writ of error against the State was not ......
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Black v. Epperson
...of causes from the district to which the case belongs.” This was the rule then, and had been from the decision of the case of Wheeler v. The State, 8 Tex. 228, construing the act of 1850, above referred to. That judgments rendered inadvertently by the supreme court are of no binding force, ......
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Gulf Coast Business Forms, Inc. v. Texas Employment Commission
...§ 2, pp. 708, 709. The powers of the state are coextensive with its physical boundaries and, as said by the Supreme Court in Wheeler v. State, 8 Tex. 228, 'it cannot be said of the State, that she resides in a particular county. * * See also State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (193......
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State v. District Court of Salt Lake County
...119 W.Va. 154, 192 S.E. 169, in the excerpt below quoted. The other jurisdiction which holds as does Michigan, is Texas. See Wheeler v. State, 8 Tex. 228, 230, State of Texas v. Cook, 57 Tex. 205, at page 208. The Cook case contains no discussion but rests dogmatically on the Wheeler case. ......