Perez v. Garza

Citations

• 52 Tex. 571
• 1880 Tex. LEXIS 26

Syllabus

<p>1. Practice—Affirmance on' certificate.—See opinion for objcctions to affirmance of a judgment on certificate without reference to the merits, which, in view of facts certified to by the clerk, were held not well taken.</p> <p>2. Practice—Affirmance on certificate.—An appellant abandoned his appeal by filing a petition for a writ of error on the day when, in compliance with his appeal bond, he should have filed the transcript in the Supreme Court. On motion of appellee to affirm on certificate the judgment rendered by the court below, appellant resisted the affirmance on the ground that he had abandoned his appeal: Held—</p> <p>1. That the right of the appellee to the execution of his judgment could not be delayed by such means.</p> <p>2. The enactment of the statute which authorizes an affirmance on certificate without reference to the merits, originated in the fact that an appellant might formerly, after delaying the collection of the judgment, decline to prosecute the appeal.</p> <p>3. To permit an appellant, after delaying the collection of a judgment for nine months by his appeal, then to abandon it, and by writ of error to stay collection for a twelvemonth longer, would be to make a mockery of the law.</p> <p>3. Distinguished.—This case distinguished from one in which plaintiff had delayed the effort to enforce his judgment, no appeal having been perfected, though the delay may have been occasioned by an erroneous belief that the appeal had been perfected. In such ease the delay would not deprive tile defendant of his writ of error.</p>