Batey v. Dibrell & Brother

Smith, J. —The defendants in error filed the transcript in this cause, and submit it with a suggestion of delay. There is no assignment of errors in the record. The suggestion of delay, however, operates as a waiver of this want, and necessarily brings in review the whole cause, and to the notice of the court any error apparent. The service of the writ of error is defective. It does not appear from the sheriff’s return that a copy of the petition for writ of error was served on the defendants, as is required. (O. & W. Dig., Arts. 411, 416, 554.) The return is, that it was served by delivering to the defend [174] ants copies of writ and copies of the same. The sheriff may have meant the copy of the petition that accompanied the same; this is only to be inferred. It may or it may not be a correct inference. The time and manner of the service must be fully stated by the sheriff. It must appear that he delivered, to the defendants in person copies of both the writ and petition, or the service will be imperfect. (19 Tex., 56; 20 Tex., 130.) In this cause we must treat the service as imperfect and a nullity, and hold that the defendants are not bound to notice it for any purpose. (24 Tex., 302.) The cause then •stands upon the transcript filed by the defendants in error, without process served upon them below. The practice of this court hitherto is believed to have been, not to dismiss-the cause peremptorily, but to permit the defendants to appear here and waive the want of service, and give the plaintiffs in error notice of the pendency of the .cause in this court, in order that they may have an opportunity to account for them apparent delay in perfecting service of the writ below and filing the transcript here, and to show error in the cause for its reversal, if they can do so. The defendants in error could have acknowledged service of the writ of error in the court below before taking out the transcript, and that would have been notice to the plaintiffs in error. But the service of the writ not having been perfected, or any notice given to the plaintiffs in error that the defendants have filed the transcript here, we are not at liberty to proceed with the cause. Therefore it is dismissed from’ this court without prejudice to a future writ of error. Dismissed.