Howe v. Merrell

Citations

• 36 Tex. 319

Syllabus

<p>JudgmenJ by default on a note was rendered on tlie 11th of August, 1871, for a greater sum than the principal and interest. Defendant filed her petition and bond for writ of error, on the 2d of January, 1872, which date was more than forty days prior to the first day of the assignment in the Supreme Court to which the case appertained. Citation in error issued the same day, but was improperly made returnable to the December term, 1872, of the Supreme Court; and a defective service of this citation being made, the plaintiff in error (defendant below) sued out an alias on the 8th of February, 1872, at which date there were not forty days unelapsed before the assignment. The alias was also made returnable to the December term, 1872, and service of it was made on the day it issued, February 8th, 1872. Plaintiff in error filed the transcript in this court on the 9th of March, 1872, which was two days prior to the assignment to which the case appertained. Pending the assignment, the defendants in error appeared in this court by their counsel, and, waiving exceptions to the service of the citation, moved that the writ of error be dismissed for want of jurisdiction in this court, but if this motion should be overruled, then asked a hearing of the cause, and suggested delay,— it appearing by the record that on the 8th of February, 1872, and subsequent to the filing of the petition and bond in error, the defendants in error had entered in the district clerk’s office a remittitur of the excess of the judgment. Held, that under the circumstances the defendants in error are entitled to submit the cause at the present term, and it is presumed to have been by a clerical mistake that the citations in error were made returnable to the succeeding term. Held further, that the suggestion of delay cannot prevail, inasmuch as the remittitur was not entered until after the filing of the petition and bond for the writ of error.</p>