23 Tex. 604 | Tex. | 1859
This case seems to have been brought into this court, before service on all of the defendants in error, under the apprehension, that the remedy by writ of error would be barred by further delay. Motion is made to perfect service, by a citation from this court, to be served on the defendants not served with the citation which issued from the District Court.
The case of Spann et al. v. French, 13 Texas Rep. 91, is cited as authority for such proceeding. That case was overruled by the case of Chambers v. Shaw, 16 Texas Rep. 143, wherein it is held, that the citation in error, issued by the District Court, must be served, before the cause can be properly brought into this court. This has been the general practice, founded on the statute, directing that course to be pursued. (Hart. Dig., Art. 2937.)
As to the writ of error being barred, our statute provides, that no writ of error shall be granted after two years from the rendition of final judgment. (Hart. Dig., Art. 2385.) In practice, the writ of error does not issue at all. The point of time at which it would properly be issued, if issued at all, would be, upon filing the petition and bond. That, then, may appropriately be taken as the time when the writ is granted, whether it be formally issued or not; and if that be within the two years, the remedy is not barred; but the party may proceed, even after the two years, to have the citation served on the defendants.
The citation in error not having been served on all of the defendants, the case must be stricken from the docket.
Dismissed.
