J. M. Radford Grocery Co. v. Lawson

Motion to Strike out Transcript and Statement of Facts. Defendants in error have filed this motion to strike out the transcript and statement of facts filed in this court on the 2d of April, 1932, and as grounds therefor assert that they were not filed within sixty days after the writ of error was perfected, as required by article 1839, Revised Statutes, as amended by Acts 42d Legis. c. 66, p. 100, § 1 (Vernon's Ann.Civ.St. art. 1839). They contend that the writ of error was perfected by the filing of the writ of error and supersedeas bond in the office of the district clerk of Upton county, on January 9, 1932, while plaintiffs in error contend that the writ of error was not perfected until legal service was had upon defendants in error which did not occur until March 10, 1932. Article 2267, R.S., provides: "When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, as the case may be, shall be held to be perfected." The other provisions of the chapter (article 2256 et seq.), in case of a writ of error, provide for the filing of a petition with the clerk of the court in which the judgment was rendered, the filing with the clerk of a bond or affidavit in lieu thereof, the issuance of citation for the defendants in error by the clerk, and service and return of such citation. Therefore the writ of error was not perfected until the citations were served upon defendants in error. Felton v. Seeligson (Tex.Com.App.) 265 S.W. 140, and authorities cited. Defendants in error cite the case of Reed v. Great American Indemnity Company (Tex.Civ.App.) 47 S.W.2d 860, as decisive of the question here involved. The court in that case held that under article 2267 the writ of error was perfected when the bond or affidavit was filed. With such holding we cannot agree. The Legislature evidently meant that something more than the filing of the bond was necessary to perfect the writ of error when it said, "And the other requirements of this chapter have been complied with." The motion is overruled.