Glavæcke v. Delmas , 13 Tex. 495 ( 1855 )

Wheeler, J.

On the 9th of December, 1853, there was service on one of the defendants in error. But the other defendant not having been served, the plaintiff in error was not required to bring up the case to the last Term of this Court: but he was required to use legal diligence to perfect service, and prosecute Ms writ of error to judgment. (Wheeler v. The State, 8 Tex. R. 228.) He, however, suffered more than a year to elapse without taking out an alias citation ia order to' perfect service. This was such delay as warranted the presumption that he had declined further to prosecute his writ of error; and as entitled the defendants in error to have it dismissed, when the latter applied and obtained the transcript on the 18th of December, 1854. There is nothing in the law to prevent the defendants from bringing up the record for that purpose. Or, if they see propter to waive that right, and ap • pear in this Court and submit the case upon the merit, they may do so, taking the consequence, of course, of having the judgment reversed, should there be error apparent upon the record, of a character to require notice by the Court, without an assignment of error.

’ Where service has been perfected, the defendant in error cannot bring up the record, so as to defeat the right of the plain • tiff to assign errors, until after the period allowed the latter for that purpose. Nor can he do so, where the plaintiff has used diligence, and has failed to obtain service. But it is the duty of the plaintiff to prosecute his writ of error to judgment : and if he will not, it is the right of the defendant to have it determined by the judgment of the Court, either dis - missing the writ, or adjudicating the case upon the merits. The plaintiff in error cannot make his own neglect to perfect service and bring up the record, a ground for striking the case from the docket, when brought up by the appellee. The most that could be asked on his behalf, is, that he should have no • tice, and an opportunity afforded of accounting for his delay, and of being heard upon the merits of his case: which, if the nature of the case seemed such as to require it, in order to its just disposition, might be accorded to him by the Ciiurt. The present is not such a case; and we are of opinion that the motion to strike from the docket be overruled.

The defendants in error having submitted the case for an. affirmance of judgment on the merits; and there being no error apparent upon the record, which has not been cured by their remittitur, the judgment is affirmed.

Judgment affirmed.