Brillhart v. Beever , 1917 Tex. App. LEXIS 996 ( 1917 )

On Motion to Quash Citation, Strike Statement of Facts, and Dismiss Writ of Error. Defendant in error moves this court to quash the citation in error because the sheriff is commanded to return the process within 30 days. Article 2091, R.S., provides that the citation in error shall be made returnable within 10 days from the date of its issuance if the defendant in error resides in the county, and in within 20 days if he resides out of the county. The error of the clerk in designating the return day is not such error as requires us to quash the citation. The purpose of the citation is to bring the defendant in error into this court, and it would be a technical ruling to grant the motion in this instance. It is held in Hall v. La Salle County, 46 S.W. 863, that an appearance by defendant in error to dismiss the writ of error upon other grounds is a waiver of clerical defects in a citation. By moving this court to strike out the statement of facts and to dismiss the writ of error proceeding, defendant in error has clearly waived his right to abate the citation.

Defendant in error insists that we should dismiss the proceeding because it is prosecuted after an appeal from the same judgment had been dismissed by this court at a previous term. In Schonfield v. Turner (Sup.) 6 S.W. 628, the court said that the abandonment of the appeal deprived the plaintiff in error of no right, and that the case stood as if no appeal had been taken, since defendant in error had made no effort to affirm the judgment at the previous term. This holding is cited with approval in Texas, etc., Ry. Co. v. Hare,4 Tex. Civ. App. 18, 23 S.W. 42 (affirmed in 93 Tex. 651). In the Hare Case, as in this case, the appeal was dismissed for want of prosecution.

The ground of the motion upon which defendant in error seeks to strike out the statement of facts must also be overruled. It appears that plaintiff in error has used the Identical statement of facts which was sent to this court at the former term when an appeal was prosecuted from the judgment of the lower court, and the clerk of the lower court failed to place his file mark upon it. It appears by the certificate of the clerk attached to the copy of the statement of facts that it is an exact copy and a duplicate original of the statement of facts filed in his office in the court below. We think this is sufficient upon that point. M., K. T. Ry. Co. v. Waggoner, 102 Tex. 260, 115 S.W. 1172. While the copy now with the clerk of the lower court was filed there more than 90 days after the appeal was perfected, for the purposes of this proceeding it is filed here in time. It seems to be the settled practice that a statement of facts filed within 12 months is in time where the case is brought to the appellate court for review by writ of error. McLane v. Haydon, 178 S.W. 1197; Louisiana-Rio Grande Canal Co. v. Quinn, 160 S.W. 151.

The motion is in all things overruled.