Howe v. Merrell

Walker, J. One or two questions of practice are presented in this case. Had the plaintiff in error perfected a proper service of the citation forty days before the assignment to which the case belongs was taken up, we should simply have affirmed the judgment without damages; and upon the authority of Chrisman v. Davenport, 21 Texas, 483, we would have taxed the costs in this court to the defendant in error. The verdict and judgment in the District Court were in excess of the amount for which judgment should have been rendered ; and the plaintiffs below entered no remittitur until after the adjournment of the court, and the defendant below had sued out a writ of error, and filed her supersedeas bond, to bring the case to this court. The writ should have been returned to the December term of this court, for the year 1871; but, by what no doubt is a clerical mistake, it was made returnable to the December term, 1872. That term has not yet arrived, but the case is before us at the present term. The defendants in error have appeared and briefed the case, and ask for a hearing at the present term, to which we think under all the circumstances they are entitled. But we cannot regard this as a delay case. The judgment of the District Court was erroneous, and the appellees did not file their remittitur of an excess of the judgments, in time to prevent the case being properly brought before us. Had the plaintiff in error in the first instance made the proper citation in error, and had it returnable to the proper term, she should have saved her costs in this court. But this she did not do, and we deem it but justice to the parties to affirm the judgment without damages ; the appellees to recover their costs in this court and in the District Court. Affirmed.