Palmer v. Spandenberg

108 S.W. 477, 49 Tex. Civ. App. 331, 1908 Tex. App. LEXIS 73

Opinion

KEY, Associate Justice.

— The defendant in error has submitted a motion to dismiss the writ of error in this case. None of the reasons assigned for dismissal are well taken, and some of them are so obviously untenable as to render discussion unnecessary. Two points only will be noticed. The first is that the writ of error bond, while signed at its conclusion by the sureties, is not so signed by the plaintiff in error. Such signing was not necessary. (Shelton v. Wade, 4 Texas, 148; Lindsay v. Price, 33 Texas, 282; McKellar v. Peck, 39 Texas, 385; Bridges v. Cundiff, 45 Texas, 439; San Roman v. Watson, 54 Texas, 254; Houston & T. C. Ry. v. Lockhart, 39 S. W., 320; Karnes County v. Nichols, 54 S. W., 656.)

The second point is that the transcript is incomplete, because it fails to contain a written waiver of citation' by one of the defendants in the court below. The clerk of the - court below has certified that the transcript now on file contains all the proceedings in that court, and we can not accept the unsworn statement in the motion, in contradiction of the clerk’s certificate, as true. Besides, if the statement in the motion is correct the defendant is not entitled to have the writ of error dismissed for that reason. His remedy would be a writ of certiorari to perfect the transcript, and he has not asked for that.

Motion overruled.