Lopez v. Flores
Lopez v. Flores
Opinion of the Court
The petition in error misdescribes the judgment "which the plaintiff in error desires should he reviewed. The suit was commenced- in the district court by attachment, and on the seventeenth day of April, 1868, the district court quashed the attachment, and -on the fourteenth day of September, 1868, the plaintiff in .error recovered a judgment against the defendant in error; but it is not from this latter judgment that the plaintiff would appeal, and, his description of a judgment rendered at the fall term for the year 1868 is erroneous.
The petition in error was filed on the sixth day of May, 1870, more than two years after the rendition of the judgment, which the plaintiff in error seeks to have reviewed. The citation in erroy does not run against the party- to the suit, nor is it seyved upon him. If the defendant in error had been a non-resident of the State, or his place of residence unknown, then the citation might have been served on his attorneys of record.
This citation is holden insufficient. The case must be dismissed for this reason alone, if none other existed; but it would be dismissed upon the grounds already alluded to. The error is not assigned to the final judgment.
The plaintiff below should have moved the court, after he obtained judgment, to set aside the order quashing the attachment ; and if the court had entered judgment upon this motion, h_e might then have appealed from such judgment of the court, and in that wav found his redress, if he were entitled to any. (31 Texas, 207.)
The petition in error is dismissed.
Dismissed.
Reference
- Full Case Name
- Benito Lopez v. J. M. Flores
- Status
- Published
- Syllabus
- a. In an attachment ease, the district court quashed the attachment, in April, 18(38; to which ruling'th.e plaintiff excepted. In September, 1868, the plaintiff recovered judgment against the defendant in personam, for his debt and interest. In May, 1870, plaintiff Sled his petition for a wit of error; bat in it he made no reference to the final judgment in personam, and complained only of the interloentoryjudgmentof April, 1868, whereby the attachment was quashed ; which interlocutory judgment he misdescribed as of the date of the final judgment. The bond in error followed the recitals of the petition, and the citation merely summoned the defendant’s attorneys to appear and “ answer the petition for writ of error.” H:ld, that there is no such judgment in the record as that described in the petition for the writ of error,- and the proceedings in error are consequently and fatally defective—that, even if the interlocutory judgment could have been brought up to this court for revision, the petition for the writ of error was filed too late, two years having elapsed after the rendition of that judgment—but, in order to have brought that interlocutory judgment before this court, the plaintiff, after obtaining his final judgment in personam, should have moved the court bolow to set aside the interlocutory judgment; and from a judgment overruling that motion, the plaintiff could have had recourse to this court, 2. A citation in error should run to the defendant in error, and not to his attorney, even when it can lawfully be served upon the attorney, in consequence of the non residence of the defendant or inability to find him .