Miller v. Cunningham

1 White & W. 539

• Court: Texas Commission of Appeals
• Decided: May 15, 1880
• Docket: No. 1514, Op. Book No. 2, p. 150
• Status: Published

Opinion

Opinion by

Walker, R. S., P. J.

§ 958. Petition for writ of error. There is no requirement of the statute directing the form of a petition for a writ of error; the granting thereof is a ministerial act, to be performed by the clerk on the filing of the petition and bond; it is certainly not vitiated by being addressed to the judge of the court to which the clerk officially belonged, when it is in every other respect proper. It is irrelevant for the purposes of jurisdiction whether the plaintiff in error has entitled himself to a writ of supersedeas or not, and no facts entitling himself thereto need be stated in the petition.

§ 959. Assignment of errors; fundamental error luill be noticed without. A motion to dismiss a writ of error or an appeal will not be sustained because of the want of an assignment of errors, when, upon an inspection of the record, a fundamental error is discovered; but such error, and no other, will be revised by the appellate court. [Salinas v. Wright, 11 Tex. 572; Rankert v. Clow, 16 Tex. 9; McLemore v. McClellan, 17 Tex. 122.]

Reversed and remanded.