Missouri Pacific R'y Co. v. Jarrard

Citations

• 65 Tex. 557
• 1885 Tex. LEXIS 343

Syllabus

<p>1. Practice in supreme court—Continuance—Citation in error—Revised Statutes, art. 1034—Judgment in a cause pending in a district court, was rendered on November 11, 1884. Petition for writ of error and supersedeas, and a supersedeas bond and assignment of errors, were filed in that court, on December 12, 1884. On the same day a citation in error was issued, but, without fault on the part of the plaintiff in error, was not served until January 5,1885. On January 16, 1885, only three days before tne day designated for the call of the assignment to which the cause belonged in the supreme court, the defendant in error waived, in writing, the twenty days required by law in cases of service of writs of error, entered nis appearance :n the latter court, and consented to a hearin gof the cause at that term. The plaintiff in error moved for a continuance of the cause to the next succeeding term, on the ground that he was not obliged to prepare the cause and submit it at the then term of the supreme court. Held:</p> <p>(1) That the citation in error having been served within less than twenty days before the first day of the assignment to which this case belonged, the cause was returnable to the next succeeding term of the supreme court at Galveston ;</p> <p>(2) That the plaintiff in error had the right to so treat it, and no act of the defendant in error, done after the service of the writ was perfected, could change the rights or the position of the plaintiff in error, so as to impose on him burdens or duties more onerous than were required by the statute;</p> <p>(3) That the provision of the statute (R. S., art. 1034) as to the twenty days which must elapse between the service of the citation and the commencement of the assignment, in order to give the supreme court jurisdiction at a particular term, is as much for the benefit of the plaintiff in error as the defendant in error. It was thereby intended to give him time within which to make out his briefs, have his transc