Defendant in error has filed a motion to dismiss the writ of error in this case, because an appeal therein by the plaintiff in error, with supersedeas bond, has been heretofore dismissed for the want of prosecution.
Judgment was rendered in favor of the defendant in error against the plaintiff in error in the District Court of Liberty County, August 19, 1891, from which the plaintiff in error perfected an appeal, with supersedeas bond, to the term of the Supreme Court at Galveston, 1892. Plaintiff in error duly filed the transcript in the Supreme Court at said term, but having failed to file its brief in accordance with law and the rules of the Supreme Court, the appeal was dismissed on the motion of the defendant in error.
Afterwards, on February 4, 1892, the plaintiff in error sued out this writ of error to the Galveston Term, 1893, of the Supreme Court, and in accordance with the act of the Legislature organizing the Courts of Civil Appeals, filed the transcript in this court.
It is contended by the defendant in error, in support of his motion to dismiss, that when a party appeals from a judgment, gives notice of appeal, and files a supersedeas bond according to law, he can not prosecute a writ of error on supersedeas bond to the succeeding term of the appellate court.
The statute permits a writ of error to be sued out at any time within two years after final judgment, and does not in terms place any limitation thereon. Rev. Stats., art. 1389. The question of the right to prosecute a writ of error after an appeal has been perfected has come before the Supreme Court in several cases, but not as here presented. It was held, in Perez v. Garza, 52 Tex. 571, that a person who had perfected an appeal under a supersedeas bond could not abandon it and sue out a writ of error with a like bond, returnable to a term subsequent to that to which the appeal was returnable, and thus defeat the right of appellee to affirmance of the judgment on certificate. In Thompson v. Anderson, 82 Tex. 237, it was held, that an appeal perfected with cost bond, afterwards abandoned, would not defeat the right to a writ of error; but the court said: "If the appeal had suspended the right of defendant in error to enforce his judgment, there would be much reason for holding that a writ of error might not be allowed returnable to a term subsequent to that to which the appeal was returnable." The decisions go no further. *Page 21
The case of Thomas v. Thomas, 57 Tex. 516, and Eppstein Co. v. Holmes, 64 Tex. 562, follow Perez v. Garza in announcing that a party can not resort to both methods of appeal for mere delay; from which we infer, that a certificate of affirmance can not be defeated by a subsequent writ of error sued out after an appeal with supersedeas bond has been perfected. As said in Schonfield v. Turner, 6 Southwestern Reporter, 628, "It has been the uniform practice of this court, when an appeal has been dismissed for the want of prosecution, to allow the cause to be taken up by writ of error." It is true that the appeal in that case was by a guardian ad litem, without bond; but the construction given to Perez v. Garza therein was only that a perfected appeal secured the right to have the judgment affirmed on certificate, notwithstanding the subsequent writ of error. Defendant in error says in argument, that he could not have the judgment affirmed on certificate in this case, because the transcript was on file. To which it may be replied, that when the appellant failed to file a brief the appellee had the option to have the appeal dismissed or to proceed ex parte. Rev. Stats., art. 1038; old Rules Sup. Ct., 43. Having voluntarily chosen to dismiss the appeal, he ought not to complain if the appellant then sues out a writ of error. We have only the expression in Thompson v. Anderson, without any indication as to how the court would decide the question, in support of the contention of defendant in error; and opposed to this are the plain terms of the statute and the uniform practice of the court, as limited in Perez v. Garza, and the other decisions above referred to.
We are of the opinion that the motion to dismiss the writ of error should be overruled.
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