Spann v. French

Decided July 1, 1854

Texas Supreme Court · decided 1854-07-01

<p>The plaintiff in error must file the record at the next Term of the Supreme Court, although the citation, be not served; if he fail to do so, defendant may demand an affirmance without reference to the merits, on filing the proper certificate.</p> <p>Where the record, on error, is filed by the plaintiff in error before service of the citation, if the defendant in error do not appear, a citation will issue from this Court.</p>

Decided 1854-07-01

Lipscomb, J.

¶1In this case, the plaintiff filed his certificate, *92showing that he had obtained a judgment against the defendants ; that the said defendants had suspended execution on the said judgment by filing a bond for a writ of error; and moved the Court for an affirmance of his judgment, because the record had not been filed in this Court. The defendants resist the motion on the ground that they had not been able to procure service of the citation on the plaintiff.

¶2The defence cannot be sustained. It affords no excuse for not filing the record. After it had been filed, if the plaintiff in the judgment should not appear and waive service, a citation would have been issued from this Court.

¶3Judgment affirmed.