Lopez v. Flores

Citations

• 34 Tex. 234

Syllabus

<p>a. In an attachment ease, the district court quashed the attachment, in April, 18(38; to which ruling'th.e plaintiff excepted. In September, 1868, the plaintiff recovered judgment against the defendant in personam, for his debt and interest. In May, 1870, plaintiff Sled his petition for a wit of error; bat in it he made no reference to the final judgment in personam, and complained only of the interloentoryjudgmentof April, 1868, whereby the attachment was quashed ; which interlocutory judgment he misdescribed as of the date of the final judgment. The bond in error followed the recitals of the petition, and the citation merely summoned the defendant’s attorneys to appear and “ answer the petition for writ of error.” H:ld, that there is no such judgment in the record as that described in the petition for the writ of error,- and the proceedings in error are consequently and fatally defective—that, even if the interlocutory judgment could have been brought up to this court for revision, the petition for the writ of error was filed too late, two years having elapsed after the rendition of that judgment—but, in order to have brought that interlocutory judgment before this court, the plaintiff, after obtaining his final judgment in personam, should have moved the court bolow to set aside the interlocutory judgment; and from a judgment overruling that motion, the plaintiff could have had recourse to this court,</p> <p>2. A citation in error should run to the defendant in error, and not to his attorney, even when it can lawfully be served upon the attorney, in consequence of the non residence of the defendant or inability to find him .</p>