W. H. Overton v. Terry & Huffman, 49 Tex. 773

Gould, Associate Justice. The judgment in this case was rendered July 18, 1873; a petition for writ of error was filed July 13, 1874, and a supersedeas bond on ISTovemvember 18, 1874; but no citation in error was issued until June 25,1875, a term of this court having intervened. The transcript was filed at the Austin Term, 1876; but the case was, on motion of defendants in error, dismissed, because the citations in error were defective, being made returnable at the wrong time.

The plaintiff in error perfected service of citation in time for Austin Term, 1877; but his counsel who had charge of the transcript failed to file it at the proper time. At a subsequent day of the term, the counsel having made a sufficient excuse for their failure to file, were allowed to file the transcript. This was after the assignment had passed; and as the counsel for defendant in error was not present, and had no notice of the application for leave to file, the court, in granting the leave, directed that he be notified thereof.

At the present term of court, he appears and moves to dismiss the writ of error, for various grounds, and, amongst others, because of the negligence to issue citation from January, 1874, to June, 1875. It appears that a term of court was lost in consequence of this negligence; and, under the decisions of this court, if the motion made in 1876 had been to dismiss the writ of error because of this delay, the motion would have been sustained. (Wheeler v. The State, 8 Tex., 229; Roberts v. Sollibellus, 10 Tex., 354; Graham v. Sterns, 16 Tex., 156; Thompson & Adkinson v.

Rice & Davis, supra.) But no such ground was taken in that motion. The case was dismissed (stricken from the docket) for defective citations in error, the plaintiff in error asking and receiving leave to withdraw the transcript filed, with the view of perfecting service. In response to the motion now made, it is claimed that the failure to make any objection to the delay in the former motion amounts to a waiver of the right to make such objection, and that it is now too late for the defendants in error to make it available.

The writer is of opinion that the acquiescence of defendant in error in the delay, and his consequent waiver of any rights growing out of the laches of plaintiff in error, should under the circumstances be presumed; and that for that reason the motion should be overruled. Motion overruled.