Thompson v. Rice

Gould, Associate Justice. The defendants in error move to dismiss the writ of error, the principal ground being the alleged laches of the plaintiffs in error in the prosecution of their writ. The judgment was rendered February 5, 1875, and the petition for writ of error, with the necessary cost bond, was filed January 24,1877, nearly two years thereafter. The citation was issued and served on "March 29, 1877, over two months after the filing of the petition and bond, and less than twenty days before the first day of the assignment embracing Washington county. The result of the delay is, that a term of the court has been allowed to pass, the transcript having been filed at the present term instead of the term of 1877, and the plaintiffs in error appear to be responsible for that result. The statute required the clerk to issue the citation upon the filing of the petition and bond, [773] and as the writ is made returnable in thirty days, the plaintiffs in error had only to make inquiry at the end of that time to ascertain that not only was there no service, but that no writ had issued. Whatever might be the rule where less than thirty days remained for service, in order to be in time for the assignment at the next term of this court, there can be no question that the failure for sixty-four days to issue citation was negligence, both in the clerk and in the plaintiffs in error; and as that negligence has led to the loss of a term of coui’t, the motion of defendants in error to dismiss the writ must, under former decisions, be sustained. (Wheeler v. The State, 8 Tex., 204; Roberts v. Sollibellus, 10 Tex., 354; Graham v. Sterns, 16 Tex., 156.) The motion to dismiss is sustained. Sustained.