McMurtry v. Brown , 228 S.W. 1087 ( 1921 )

SPENCEE, J.

The defendant in error, E. V. Brown, filed a motion to dismiss the writ of error, basing his motion upon the ground that the judgment had been compromised and settled and a release executed by him.

The motion is supported by a certified copy of the release of the judgment by defendant in error, which recites that there has been a complete and final settlement and satisfaction of the judgment, and that the appeal of the cause now pending shall be dismissed at once at the expense of defendant in error.

The motion also alleges that defendant in error mailed to the sheriff, at Tulia, Tex., a copy of the motion to dismiss, together with exhibits attached, for service upon Mr. Dennis Zimmermann, Tulia, Tex., attorney of record for plaintiff in error; and the sheriff’s return, which is also an exhibit to the motion to dismiss, shows a delivery to Mr. Zimmermann at Tulia, Swisher county, Tex., on the 29th day of November, 1920.

Under date of March 18, 1921, a communication was addressed to Mr. Zimmermann by a member of the Commission reciting the above facts, in which it was stated that unless within ten days there be filed a controverting motion stating good cause why the writ of error should not be dismissed, the Commission would recommend a dismissal in accordance with agreement embodied in the release of judgment.

Under date of March 22,1921, Mr. Zimmer-mann, attorney of record for plaintiff in error, replied to the letter of March 18, 1921, and requested that the writ of error be dismissed as per motion of defendant in error.

We recommend therefore that the writ of error be dismissed.

PHILLIPS, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.