Lewis v. R. & D. G. Mills & Co.

29 Tex. 124

• Court: Texas Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Willie, J.

A motion is made to dismiss the writ of error in this case, because it was served upon only one of the defendants in error. We have repeatedly held, that where a writ of error has not been properly served, it will be dismissed, though the defendant in error may have appeared in this court and waived such service, provided the plaintiff in error makes no appearance here, or there is no proof that he had notice that the cause was pending in this court.

By making their motion to dismiss this cause, the plaintiffs in error show themselves fully notified of its pendency, and the defendants in error, by their suggestion of delay, have waived all defect in the service upon them. The motion to dismiss is overruled, and, the cause having been brought here for delay, the judgment is affirmed, with ten per cent, damages.

Aeeirmed with damages.