Fouga v. Fouga

FLY, C. J. This is a writ of error sought to be prosecuted from a decree of divorce granted appellee by the district court of the seventy-third district. The judgment was recovered on December 22, 1919, but is described in the petition for writ of error as having been rendered on December 16, 1919. In the petition the number of the cause is given as “B-22068”; in the judgment as “B-22168.” In the petition it is alleged that the motion for new trial was overruled on January 27, 1920, while the record shows that it was overruled on January 26, 1920. No description of the judgment is given, except by names of the parties, the number, and date, and the last two are incorrect. What the judgment was rendered for is not disclosed by the petition. The statute requires that a petition for writ of error shall state the names and residences of the parties adversely interested, and that the judgment shall be so described as to identify it. Article 2068. The residence of plaintiff in error was not stated, and there is no description of the judgment, except by number and date, and they are not supported by the record. Article 2091, Revised Statutes, requires the citation in error to run in the name of “the state of Texas,” with its date; that it shall be directed to the sheriff or any constable of any county where the defendant in error is alleged to reside or be; that it shall state the date of the filing of the petition in error, the names of the parties, and the description of the judgment given in the petition. The citation gives a different descrip.tion of the judgment from that given in the petition, showing that it was rendered in the thirty-seventh district court, instead of the seventy-third; that it was rendered at the November term of the thirty-seventh district court, on December 16. The citation shows that the judgment was for divorce, which fact is not disclosed in the petition, and the decree shows that not only was a divorce given, but the custody of a child awarded. On account of the defects in the petition and citation of error, the cause is dismissed.