Perez v. Garza

Moore, Chief Justice. The appellee, Garza, filed transcript, on certificate, containing a copy of a judgment of the District Court of Starr county, in his favor, against appellant, Perez, rendered March 24, 1879; notice of appeal from this judgment by appellant April 4,1879; (the day on which the clerk certifies the term of the court at which the judgment ■was rendered ended;) also a copy of an appeal bond executed by appellant and filed with and approved by the clerk April 14, 1879, and asks the court lor an affirmance of the judgment without reference to the merits. To this appellant objects, because it does not appear, as he insists, from the certificate of the clerk that the judgment was entered at a legal term of the court, or that notice of appeal was entered during the term at which the judgment was rendered or given in open court, and that it does not appear from the certificate of the clerk when the appeal was perfected, or that it has been perfected at all. These objections seem to ns hypercritical, and unworthy of serious consideration. The caption of the certificate shows that at a term of the District Court began and holden at Dio Grande Oity, within and for the county of Starr, and ending on the 4th of April, 1879, the following case came on for trial, to wit; [574] “Juan Garza v. Enemencio Perez. In the District Court of Starr county, Texas.—March Term, A. D. 1879.” Then follows the copy of the judgment and copy of the notice of appeal. It is true the clerk does not say in his certificate, in direct terms, that the appeal was perfected, or state the day on which it was perfected; but he gives certified copies from his records which show that it wTas perfected on April 14, 1879, which was less than twenty days from the end of the term at which the judgment was rendered. Appellant also insists that the judgment cannot be affirmed, because he abandoned his appeal on January 5,1880, the day on which he should have filed a transcript of the record in this court, if he would have complied with his appeal’ bond. But instead of doing this he abandoned his appeal, by filing on that day a petition for a writ of error and giving a writ-of-error bond. The right of appellee to the execution of his judgment cannot be delayed or trifled with by so shallow a device as this. It is the fact that appellants, after delaying the collection of judgments, might decline to prosecute their appeals, that induced the enactment of the statute which authorizes the affirmance of judgment on certificate without reference to the merits. If this could be prevented by abandoning the appeal and suing out a writ of error at a day too late for the return of the writ to the ensuing term of the Supreme Court, it would be impossible to enforce judgments against defendants who wish to delay them until the expiration of the term within which a writ of error may be prosecuted; for if the first writ of error did not effect this, it might be abandoned, as the appeal has been in this case, and another writ sued out. If nó appeal had, in fact, been perfected, the delay of the plaintiff in enforcing his judgment—though this delay may have been occasioned by the erroneous belief that an appeal had been perfected—would not deprive the defendant of his right to a writ of error. But such is not this case. The appeal was [575] perfected and the execution of the judgment stayed by reason of this appeal for some nine months, and appellant then abandons his appeal and seeks to stay the collection of the judgment for twelve months more by suing out a writ of error. To permit him to do so would be to make a mere mockery of the law. [Opinion delivered February 18, 1880.] The judgment is affirmed on the certificate without reference to the merits. Aeeirmed.