Thompson, Morris & Co. v. Pine

Decided July 1, 1874

Texas Supreme Court · decided 1874-07-01

Error from Lamar. Tried below before the Hon. Robert H. Taylor. The case ivas tried in the court below on the 20th November, 1872. Thompson, Morris & Co. filed tlieir applications for writ of error on the 25th of January, A. D. 1873; citation issued same day, and on the 6th of October, 1873, the statutory appeal bond was executed by them. The motion to dismiss, filed on the 26th J une, A. D. 1874, was based on the absence of a writ of error bond.

Decided 1874-07-01

Roberts, C. J.

¶1The motion in this case will be sus-, tallied, because the proceeding is by writ of error, and the bond -intended to "be a cost bond for writ of error is in terms a bond for an appeal.

¶2The motion to dismiss on such a ground, made during the call of the assignment and before the case is disposed of on the merits, is not too late, notwithstanding the 26th rule for the Supreme Court, (32 Tex.,) it being a substantial objection to the bond, not to be disregarded when claimed, though it may not involve a question of jurisdiction of this court. (Chambers v. Miller, 7 Tex., 75; Janes v. Langham, 29 Tex., 414.)

¶3We find no service on one of the defendants in error in the record. (Crunk v. Crunk, 23 Tex., 604.)

¶4Motion sustained.

¶5Dismissed.