Graham v. Sterns

16 Tex. 153 | Tex. | 1856

Wheeler, J.

Two grounds are relied on to dismiss the writ of error : 1st. That there is a misdescription of the judgment. 2nd. The want of legal diligence in prosecuting the writ of error. The judgment brought up for revision was rendered in a suit for divorce, wherein a divorce was decreed; certain property of the wife, certain community property, and the custody of the children were decreed to the husband, who was plaintiff: and he was adjudged to pay the costs. The petition in error describes a suit between the parties decided at that Term, wherein “ such judgment and decree was then and there rendered, as to make partition of petitioner’s property in said decree, and judgment for costs against her in such suit incurred.” It is not stated that any decree of divorce was rendered, or that it was in a suit for divorce. It cannot be pretended that the petition describes the judgment brought up for revision. The nature and effect of the judgment are misdescribed. It is not a defective or insufficient description merely, but a total misdescription.

We have heretofore held, that the petition or citation in error must contain such certainty of description as to notify the defendant, with reasonable certainty, what judgment it is proposed to revise. (5 Tex. 566; 6 Id. 250 ; 10 Id. 35, 38.)— If less were required, it is difficult to perceive what sensible. object the service upon the defendant of a copy of the petition and citation, is to subserve. Liberal as our practice is, in dispensing with merely formal matters, still, it requires the observance of certain forms, in order to preserve coherence and •consistency in judicial proceedings ; and these cannot be dispensed with. If the requirements of the statute, in these respects, were not observed, and no regard had to the regularity of judicial proceedings, the records of those proceedings would cease to be intelligible, and might as well be at once dispensed with.

But if the misdescription of the judgment were not sufficient to require the dismissal of the writ of error, the omission to prosecute it with the diligence which the law requires, must be so held. The statute is imperative, that the citation shall issue immediately, “ upon the filing of such petition.” It is returnable in thirty days. If the party is a non-resident, or cannot be found, it may be served on the attorney of record. If not served, an alias must issue “ forthwith.” A diligent observance of these requirements of the law has been heretofore insisted on. (8 Tex. R. 228 ; Chambers v. Shaw, supra) And it is evident, if they be observed, there can be but little delay, in bringing up a cause for revision, after the filing of the petition in error. It is not less.evident that, to maintain the present writ of error, must be to sanction an utter disregard of the plain requirements of the statute. If the citation had been taken out as the law requires, it might have been served and returned to the last Term of this Court. But it was not taken out for more than a year after the filing of the petition.

In the absence of anything appearing to the contrary, we must suppose this delay was the fault of the party, rather .than of the officer. But if it was the fault of the officer, in not issuing citation in the first instance, the party was bound to know when citation should have been returned served; when he would have been entitled to demand the transcript. If even then, he had caused a citation to issue “ forthwith,” as the law requires, he might have had service in time to have brought the case to the last Term of this Court. Upon neither citation issued, was there a delay of more than a day in obtaining service ; so that there is no cause to apprehend, that, with the requisite diligence, service might not have been had. immediately. It is needless to advert to the inconvenience, and, indeed, the abuses to which such a practice would tend. It will suffice to dispose of the case, that to maintain the present writ of error, would be to sanction an utter disregard, not only of the manifest policy and spirit, but of the plain letter of the law. The writ of error must, therefore, be dismissed.

Writ of error dismissed.