Waterhouse v. Love , 23 Tex. 559 ( 1859 )

Wheeler, C. J.

The writ of error must be dismissed. The statute provides, that “ no writ of error shall be granted after the expiration of two years from the rendition of the judgment.” (Hart. Dig., Art. 794.) The language is too plain to be mistaken. It bars the remedy at the expiration of two years from the “rendition of the judgment.”

The rendition of the judgment is an independent fact, distinct from the adjournment of the court, from other proceedings at the term, and in the same case; and it is from the happening of this fact, that the two years are to be computed. This is the plain meaning of the language of the statute. A previous section of the same act provides, in case of appeal, that the appeal bond shall be given “ within twenty days after the term of the court, at which the judgment or decree was rendered,” showing that the legislature had in mind the distinction between the date of the judgment and of the adjournment of the court. The petition for writ of error was not filed until after the expiration of two years from the rendition of the judgment.

The writ of error must have been dismissed on another ground. The petition in error was filed on the 18th of October, 1858, after the taking effect of the Act of the 5th of February, 1858, which provides, that “ no writ of error, to remove a cause from the District to the Supreme Court, shall in any case issue, unless the plaintiff in error give bond, with sufficient security for all the costs which may accrue in the Supreme Court, and which may have accrued in the District Court.” (Acts 7th Leg. p. 112, § 13.) Ho bond having been given, as the statute requires, the writ was obtained contrary to law, and must consequently be dismissed.

Dismissed.