Howard v. Paschal

Citations

• 52 Tex. 60
• 1879 Tex. LEXIS 114

Syllabus

<p>1. Practice in Supreme Court—Estoppel.—The transcript of a cause was, by order of the Supreme Court, permitted to be filed after the expiration of the time allotted to the assignment, to which the cause belonged, and when counsel for appellees were not attending the court.</p> <p>At a subsequent term of the court, and in proper time for causes returnable at that term, appellees moved to dismiss the appeal for insufficient appeal bond : Held,—•</p> <p>1. That as the transcript was filed after the assignment, appellees had no opportunity to file their motion in the time required by rule S. Their failure to do so could not he considered as a waiver of even formal objections to the bond, under the terms of rule S.</p> <p>2. Appellees were not concluded by the action of resident counsel, who, at a former term, after the assignment had passed, in the absence of appellees’ counsel, assumed to represent them and consent to a continuance of the cause.</p> <p>2. Approved.—Overton v. Terry, 49 Tex., 777, approved.</p> <p>3. Practice in Supreme Court.—The filing by an appellee of a certificate for affirmance, will not estop him from afterwards attacking the appeal bond for insufficiency, after appellant has filed the transcript under leave from the court.</p> <p>4. Fact cases.—See opinion for appeal bond fatally defective because of misdescription of the judgment appealed from.</p>