Simmang v. Smith

150 S.W. 494, 1912 Tex. App. LEXIS 835

Opinions

JAMES, C. J.

Plaintiff, W. E. Smith, on November 22, 1911, recovered judgment on a note against Frank Simmang, as principal, and D. A. McAskill and Pat Stevens, as sureties. The judgment provided that said sureties have and recover over against Sim-mang the amount of the judgment, interest, and costs in the. event they, or either of' them, are compelled to satisfy the judgment, and that they have execution therefor.

[1] On April 2, 1912, Simmang filed his petition for writ of error with supersedeasbond. On April 4, 1912, a citation in error was served on one of Smith’s attorneys. On April 13, 1912, Smith filed in this court a transcript, and on April 18th a waiver of service on him and an appearance with a suggestion of delay, and upon this the clerk set the cause for submission, giving notice, and the same has been submitted.

Article 1015, Sayles’ Rev. St., provides that the appellant or plaintiff in error shall file- the transcript in this court within 90 days from the perfecting of the appeal or writ of error. The jurisdiction of this court attaches in a writ of error when the petition and bond are filed in the district court, and appellant has 90 days therefrom to file the transcript.

If appellee be permitted to have the writ of error disposed of in this court prior to the expiration of said 90 days allowed plaintiff in error, or before the latter has filed transcript, upon defendant in error bringing up a record in the meantime, plaintiff in error would be deprived of a right given him by statute.

Defendant in error has, however, the right, under the rules, to file a transcript; tout the proceedings of this court thereon must await the filing of the transcript by plaintiff in error within the time he is allowed for doing so. If plaintiff in error should not file a transcript within the time, then such proceedings as are proper may be had in this court on the transcript filed by defendant in error.

Accordingly the submission taken of this cause was premature, .and is set aside. The cause will await the proper time for its determination.