49 S.W. 669 | Tex. App. | 1898
The appellees in the above entitled cause have filed in this court a certificate of the clerk of the court below showing that an appeal was perfected in said cause from the judgment of the District Court of Galveston County therein to this court on August 1, 1898, and moved that the judgment of the court below be affirmed. Appellants have resisted the motion of appellees to affirm on certificate, and have shown to the court that they have filed with the clerk of the court below their petition for a writ of error accompanied by a supersedeas bond and have taken all necessary steps to have said cause brought up on writ of error, and that the reason they have not filed a transcript of the record in said writ of error proceeding is that they have not yet succeeded in getting service upon all of the defendants in error. They have also filed affidavits to excuse themselves for not filing within the time prescribed by law the transcript of the record upon their appeal.
An appellant can not abandon his appeal and defeat the right of the appellee to have the judgment of the court below affirmed on certificate by suing out a writ of error. Rev. Stats., art. 1016; Insurance Co. v. Clancy,
Affirmed.