Rhodes v. Coats, 215 S.W. 470

Rhodes v. Coats

215 S.W. 470 | Tex. App. | 1919

Lead Opinion

Rhodes appeals from a judgment against him for sums aggregating $2,152.92, with interest and foreclosure of lien. The judgment was by default, though due service is recited in the judgment. There is no citation, waiver, or entry of appearance shown by the transcript. This condition of the record necessitates reversal. Palomas L. C. Co. v. Good, 184 S.W. 805, and cases there cited.

Reversed and remanded.

On Motion to Perfect Record. Subsequent to the rendition of the opinion in this case, appellee has filed motion for certiorari to perfect the record so as to show due issuance and service of citation. The transcript has been on file in the appellate court since June 8, 1918. The motion comes too late. Court of Civil Appeals rules 11 and 8 (142 S.W. xi). In a proper case motions of this nature, made more than 30 days after the filing of the transcript, may be entertained, but it would be useless to do so in this case, for the reason that "Fundamental Error No. One," presented in appellant's brief, which shows that judgment was rendered for more than was sued for, would necessitate a reversal. Therefore no purpose would be served by permitting the perfection of the record so as to cure the error pointed out in the original opinion. The motion is overruled. *471

Lead Opinion

HIGGINS, J.

Rhodes appeals from a judgment against him for sums aggregating $2,-152.92, with interest and foreclosure of lien. The judgment was by default, though due service is recited in the judgment. There is no citation, waiver, or entry of appearance shown by the transcript. This condition of the record necessitates reversal. Palomas L. & C. Co. v. Good, 184 S. W. 805, and eases there cited.

Reversed and remanded.

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Rehearing

On Motion to Perfect Record.

[1-3] Subsequent to the rendition of the opinion in this case, appellee has filed motion for certiorari to perfect the record so as to show due issuance and service of citation. The transcript has been on file in the appellate court since June 8, 1918. The motion comes too late. Court of Civil Appeals rules 11 and 8 (142 S. W. xi). In a proper case motions of this nature, made more than 30 days after the filing of the transcript, may be entertained, but it would be useless to do so in this case, for the reason that “Fundamental Error No. One,” presented in appellant’s brief, which shows that judgment was rendered for more than was sued for, would necessitate a reversal. Therefore no purpose would be served by permitting the perfection of the record so as to cure the error pointed out in the original opinion. The motion is overruled.