majority"> Wheeler, J.

We are referred, in support of the motion, to the case of Spann v. French, (13 Texas R. 91.) Unless the facts of that case were more fully reported, or the record were accessible, we cannot determine with certainty what was the ground of the judgment.* Whatever it may have been, it is certain that the Term of this Court next after service of the citation in error, has always been considered and treated, in practice, as the return Term, or Term at which the writ of error must, in general, be filed in this Court. There is an exception, where service was perfected during the Term, and the forty days elapse before the end of it. Then that is the return Term. (Wheeler v. The State, 8 Tex. 228 ; Wilson v. Truehart, 13 Tex. R. 287.) With this exception, it is placed be*145yond doubt by the statute, that the Term next after service is the return Term. The Clerk is to make out the transcript “ upon the return of any citation served.” (Hart. Dig. Art. 793.) Again, “ It shall be the duty of the appellant or plaintiff “ in error to file the transcript of the record with the Clerk of “ the Supreme Court, on or before the first day of the Term of said “ Court next succeeding the time when the appeal was perfected, “ or the citation on the petition for writ of error was served,” &c. (Id. Art. 2937, Sec. 5 & 6.) But, 11 In case the appellant “ or plaintiff in error shall fail to file the transcript of the- “ record as directed in the two preceding Sections, then it shall “ be lawful for the appellee, or defendant in error, to file with “ the Clerk of the Supreme Court a certificate of the Clerk of' “ the District Court in which any appeal or writ of error may “ have been taken, attested by the seal of his Court, and stat- “ ing the time when such appeal was perfected or such citation “ was served ; whereupon, it shall be the duty of the Supreme “ Court to affirm the judgment,” &c. (Id. Art. 2938.)

The statute having thus provided in what cases it shall be lawful for the appellee or defendant in error to file the certificate and have an affirmance of the judgment, it is very clear that the Court cannot extend the provision to other cases not embraced or contemplated therein, by implication or construction. The statute leaves no room for construction. Its direction is plain and mandatory. Moreover, it is a rigorous provision, which cannot be enlarged by construction ; but must be construed literally and strictly, according to its express terms and meaning. It is only when the citation has been served, that “ it shall be lawful ” for the defendant in error to file the certificate, and have an affirmance of judgment. The defendant in error not having brought Ms case within the provision of the statute, there not having been service of the citation, the motion to affirm must be refused.

But in such a case, the defendant in error is not without a remedy. He may acknowledge service, or waive the neces*146sity of a citation in error in the court below, and bring up the record, and submit the case to this Court as a delay case, or for a revision and judgment upon the merits. Or he may require the Clerk to issue execution notwithstanding the petition and bond, where the plaintiff in error has thus prevented the issuance and service of the citation ; and if the Clerk should refuse to issue execution, he might, perhaps, upon a proper representation to this Court, have a mandamus to enforce the duty ; or the petition in error may be dismissed. The Clerk should not have received the petition and bond of the party under such instructions ; or, if he received them, he should by no means have obeyed the instruction to delay issuing the citation. The law requires him to issue the citation immediately upon the filing of the petition ; and upon the return of the citation not served, “ forthwith ” to issue an alias, pluries, &c. (Hart. Dig. Art. 193.) In the case of Wheeler v. The State, (8 Tex. R. 228—234,) the necessity of promptitude in the discharge of this duty, was noticed and insisted on. The instructions of the party should not be suffered to countervail the mandate of the law. It is clear and positive in its requisition ; and, of course, is of higher obligation than the directions of the party. In this instance the Clerk, doubtless, supposed it proper to obey instructions, and that he was acting rightfully in so doing.. But we deem it proper, for the information of Clerks, to say, that, in such a case, they should not delay the duty, which the law requires of them, for the benefit as well of the defendant as plaintiff in error, at the request of the latter.

Motion overruled.

The judgment below, in Spann v. French, was dated Oct. 20th, 1853, and the petition for writ of error was filed March 3rd, 1854. These are the only facts, not stated in the report of that case. The reasons stated in the opinion of the Court, led the Reporters to believe that the dates were not important ; and as the facts in that case were similar to the facts in this case, the former must be considered overruled.—Reps.

Citation profile

Relationships

How this case has been treated — in progress