185 S.W. 640 | Tex. App. | 1916
The defendant in error presents her motion to dismiss the writ of error because the citation was void in that it was issued when no bond had been filed or approved when issued, and is insufficient to give this court jurisdiction, and because the bond is not double the amount of probable costs fixed by the clerk.
The petition for writ of error was filed January 24, 1914 (evidently meaning 1916, and it is apparent upon the record a clerical error), which seeks to review a judgment rendered April 15, 1915. Citation was issued on this judgment January 25, 1916. The return thereon shows service on S. L. Coleman, January 31, 1916. The writ of error bond was filed and approved February 5, 1916, by the clerk of the district court, in which the case was tried below. The bond is for the sum of $100. The clerk fixed the probable costs at $100. The statutes require that the petition and bond be filed before the issuance of the citation. Articles 2089-2090. Vernon's Sayles' Civil Statutes. Until there is citation and service, as required, the case would be improperly filed in this court. The bond must precede the issuance of citation. Thompson v. Thompson, 41 S.W. 679. The petition and bond are required to give this court jurisdiction. There was no such bond *641
filed as required, as it was not double the amount of the probable costs, as fixed by the clerk. This, however, can be amended. Article 1609, Vernon's Sayles' Civil Statutes. The clerk, it would appear, under the statute and under the authority of Thompson v. Thompson, supra, prematurely issued the citation. The filing of the petition and bond gave this court jurisdiction if the petition and bond were filed in one year from the date of the judgment. They are not required to be filed together in order to confer jurisdiction upon the appellate court, provided they are both filed within one year. Thompson v. Hawkins, 38 S.W. 236. This court, therefore, has jurisdiction, and should not dismiss the case. On account, however, of a defective citation, and the service thereof, we are authorized to strike this appeal from the dockets of this court. Vineyard v. McCombs,
