Simmang v. Smith

Decided May 29, 1912

Court of Appeals of Texas · decided 1912-05-29

L Appeal and Erkob (§ 627*) — Affirmance on Motion — Time foe Proceedings. Proceedings by the Supreme Court on transcript filed by defendant in error under the rules, and on motion by him to affirm the judgment, cannot be had till lapse of the 90 days after the perfecting of the writ of error; that is, 90 days after the filing of the petition and bond in the district court, given plaintiff in error by Sayles’ Rev. St. 1895, art. 1015, in which to file the transcript. [Ed. Note. — For other cases,' see Appeal and Error, Cent. Dig. §§ 2744-2749, 3126; Dec. Dig. § 627.*] On the Merits. 2. Costs (§ 260*) — Appeal — Affirmance with Damages — Delay. The circumstances indicating the writ of error was sued out for delay alone, plaintiff in error not having filed a transcript,. though the time therefor has elapsed, and not having filed a brief or made any effort to show error, the judgment will, on motion of defendant in error and transcript filed by him, be affirmed, with 10 per cent, damages for delay. [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.*]

Cited by 1 later decisions — most recently June 1923

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Affirmed, with damages · Decided 1912-05-29

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¶1 On the Merits.

FLY, J.

¶2 [2] Defendant in error obtained judgment on a promissory note against Frank Simmang, as principal, and D. A. McAskill and Pat Stevens, as sureties; provision being made for judgment over against the principal in favor of the sureties. Simmang filed his petition for writ of error and super-sedeas bond. No transcript has been filed in this court by Simmang; the transcript having been filed by defendant in error, who has filed a motion to affirm the judgment, with 10 per cent, damages for delay. No briefs have been filed and no effort made by plaintiff in error to show any error in the judgment of the county court. The circumstances indicate that the writ of error was sued out for delay alone, and the judgment will be affirmed, with 10 per cent, damages as prayed for.