Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-16

No 1854 First National BonA 9, st
taguc painUn AZ error. vs. A. ~ Nost, 49,,
son. defendant IN Crror' hiiNr avg"
Mitchell county.
OPINION on MOTION TO DISMISS.
WRIT or ERROR
CONCLUSIONS OF FACT
on the lth day of December. iSSl 10 me
district court II Mitchell county, dclthgh'
in error recovered q Judgment asnlhsl P1,,,
iin 10 error ina Fainisltncni ~ .J.tatiN
Tor the snm ~ SgIui. from which pinln'n
iu error through iis attorney. atemNteu ~
prosecute % writ 0f error ON the @'th ua4
of February isgO. he filed its petition NV
bond Tor writ 81 error aud hal cltauQh
promptly Issued He applied Tor aud OBJ
iained from the clerk u said court q F"n-
script 81 the record. which he Calseu "
De- nled Zoe lac supreme cuuzt on the ~ vhs
Of May, 1890 OF which term OF me supreme
court the cause was submitted ON bis pfeL
owing 70 the crowded condition OF lhe
docket Of thnt Cnuft. the cause WIS ~.
Of June lSH2, Whom judgment Wa Ieh
dered reversing ana reminding said cause.
Thereafter on the 18Th day OF June ls''Z:
Che defendant by attorney, Oiled in sali
cause q fnC sion Tor q rphearinu. Whlch WIS
on the 21th day Or June iN'2. Sustained
by the supreme cOHrt. and the Jungtunht
previously entered Nucatei ml the cause
Wae stricken rom the docket because the
transcript failed TO show inHt tire citation
ga error had been served. Thereafter On the
10Th day " June 1872. plniniin in crrur
caused an alias citation 90 be issued and
served on drfcnduIt Ia error and again
Med the transcript w The supreme court
on The d0ih duy 81 september. 1877. ON
thc LIT DAY OF October. iS2. defendant Ia
o1oE tiod his molten IN ihe supreme cOnft
90 drmiss PLAINTIFFS writ OF error because
pla,ntlh hud pcriultted over tWu wears 10
clupse after hlinr its petition aud hoDd Dee
fore hatinc defendant citcl and because
three terms Of the supreme court had passed
after thc Hing ~ the petition and DUud
before 10 hnd caused citation in error To
bc served ON def, udent This motion With
thr transcript having been transferred 10
tlis court, has been submitted Tor our
determination va connection with tic on.
swcr " plaintiff IN error 10 the motion and
upon anldavits ttlnting To The diligence or
negligence OF plaintiff IN error and cspct
iglly on the hsuc as To- Wheeler the original
citation In error was ever served. Our
conclusion. from The aiidaYts and other
matters submitted a.. that according tu
prcnondernnCc Of the evidence. the Original
citation IN error was never served. We
further conclude that plantim Ia error, the
First National bank Of Montague, Tex, re-
lied solely upon its attorney TO take the
necessary steps 10 prosecute its writ OF
error and thar this attorney was under the
erroneous Impression when he hled ana
submitted the record in tie supreme court
and thereafter until the ease was decided
by the supreme court that the ORR
glnul citation ln error had been served.
We are also Of opinion that he probably
al the time hni good reason to believe that
the citation had been served; but that ow-
Ing to the lapse OF time intervening AMI
the loss Of tho original papers IN sold cause.
he has been unable 10 show the particular
fncts or circumstances which probably mis-
led him. We IND that the Judgment IN
favor or defendant Va error was suspended
hy a good ana sufficient supprsedpns bond
aud thar no injury is likely 10 result go de-
fendant In error from the delay In the prose
cutiun OF this writ OF error We find that
neither plninun IN error nor lts attorney
had been guilty o. any Intentional neglect
IN prosecuting the writ of error but thet
The delay hns resulted from mistake of
fact ON the part Of cOunsci for plaintin Ia
error We are further OF the opinion,
though There u no direct proof upon this
point, that 1t may he inferred than dcfcn.
duut in error has silently ucqulesced Ia the
CONCLUSIONS or LAW
The law provided heretofore that writ
OF error might De prosecuted 40 any time
within two years after hual Judgment. We
kuaw OF no statute which requlres Ms 10
tds,aIsG this writ OF error. We conclude.
uudcr the foregoing findings oi fHct that
the plaintiff Ia error has not been guilty Of
amy such incXcusahle neglect 10 prosecute
this wrlt OF error aus would Justify us In
denying u hearing upon this record, es-
brought consplmousiy 10 our notice that
the highest judicial tribunal In the state
has already undcr mistake OF fact re-
viewed the record and declared by their
Judgment chat defcndHnt IN error o. not
entitled by virtue Of the judgment below.
to recover OF plaintiff I'm error the sum OF
money, .whlch, by this proceeding, Il seeks
10 avoid paying. Certainly this decision Of
The supreme court justlnes the Inference
that the writ Of error which, plaintin seeks
10 prosecute ~ not without merit. and we
think tlnt the rights Of defendant in error
viii not be prcjudiCed by ovcrruilng this
motion. In equity relief VIII some tlmes
De granted uguinat u mistake caused by
the want Of ordinary care II the other
person Ia not preludlced thereby Pom
Willie we have hnd difficulty under the
decisions Of our supreme court IN reaching
these conclusions we are OF opinion with
out here reviewing the several CaspR cAau-
med that iu 0yerrullng this motion we
commit no error. and N error there be- in
80 doing. II would seem TO be ON the side
Who Mr.. Hcaa associate justice. couours
IA the conclusions Reached, he does So more
on account of the views expressed by
Ghiet Justice Roherta IN his separate opin-
ION IN the case Of OYertun W, Terry * Hun
man 90 Texas, az (Which meets his apprOba-
tom than tor The rWlsnns stated above lie
doubts The hufliclency of the excuse shown
ln the failure 70 sooner have the citation
Gould In thnt case on the effect OF ac,luits.
cehcel,
The motion win be overruled. tSisneD
STEPHENS, Associate Justice.
No c. T.. II Carhurt, appellant Va. G..
A. BroWn, appellee. Appeal Irom Donley
county.
OPINION.
Gncludlug findings OF TACT ana conclusions
OF lnW)
This Is an appeal from Judgment rem.
dcrcd IN the district court uf Donloy couut,,
IN IaN0r OF appelee against appellant. The
suit was brought ON Doc o. 1885, 10 recover
sum OF money alleged by appellee To-
have been expended hy him In excess OF his
oDhgauons as partner OF appellant lhe
court Tried the ease without Jury and
rendwd Judgment, subicctng the partner.
hart to Judgment of 5000. ANA decrcelng
" me partnership property he NOT suicirnt
10 satisfy the amount OF the ludgmcnt
! mat PLAINTIFF have Judgment against dofop-
| dant Tor one-third of the amount remnln.
ms unsutished nfier all of the partnership
property has been exhausted
The following conclusions OF fact ara
adopted SUBSTANTIALLY from the Gndlngs or
the lower court va
CONCLUSIONS or FACT.
l.. on the 1st day OF juno. 1SSI n
CArharE y. y McCleland and O.. a. Brown.
substantially MS follows: ''"P'
lhat l.. II, i1rhnrt. !. y. AfcClellapd aud
| g. Brown have thle dan pntere,i
| mo a copartnershin for the piirpnse M
| procuring fenUiug. stocking und oh.rttinr
Stock rphCh IA lonlcy county IeX. nnd
| embracing the following teIrltory
| anu each of Naid partners shall Share eo,su,
| ana alike, all costs ana expenses inslIAnt
| 70 saiu arm business, ana Ia an p,,olts ana
| lpsEes ueWulng therefron but neither mart
| htr shul nave the power 10 sou the Interest
| ol ms co.paftner, IN said firm business
| without the written consent OF ssid
eo-pariner, and should any metnGsr
| Of the ilfn determine % dispose OF or sell
| ms interest IN said business Tho rep,otntne.