Corneli Seed Co. v. C. D. Jarratt Co.

SMITH, Chief Justice. Plaintiff below, proponent of this motion, has attempted to appeal by writ of error from a judgment resulting from a trial in which plaintiff was represented by counsel who actively participated in all the proceedings in the case. The record tendered here by plaintiff discloses that citation in error was not issued until May 5, 1941, or served upon defendant below until May 13, 1941. Under Art. 2249a, Vernon’s Civ.Stats. Acts 1939, 46th Leg. p. 59, the right of appeal by writ of error was denied to litigants in trials in which they or their counsel participated. The Act was made effective January 1, 1940. It is now settled by the decisions that under that Act no person affected by it (such as plaintiff in this case) may prosecute appeal by %vrit of error unless petition for writ of error has been filed in the trial court, and service or waiver had thereon, prior to the effective date of the Act, to-wit: January 1, 1940. Newton v. Barnes, Tex.Civ.App., 150 S.W.2d 72, and authorities there cited; United Employers Cas. Co. v. Skinner, Tex.Civ.App., 141 S.W.2d 955. The -fact that petition for writ of error and bond thereon are filed prior to [498] the effective date of the Act is immaterial and does not control. Under the authorities cited the ultimate act authorizing appeal by writ of error is that of service or waiver of citation in error prior to January 1, 1940. No attempt was made in this case to procure such issuance or service until May S, 1941, fifteen months after plaintiff’s right to that remedy had terminated. Plaintiff’s motion to require the clerk of this Court to file the record in the attempted writ of error proceeding is overruled.