
    Missouri Pacific R’y Co. v. J. T. Jarrard.
    (Case No. 1994—Motion No. 944.)
    1. Practice in supreme court—Continuance—Citation in error—Revised Statutes, art. 1034—Judgment in a cause pending in a district court, was rendered on November 11, 1884. Petition for writ of error and supersedeas, and a supersedeas bond and assignment of errors, were filed in that court, on December 12, 1884. On the same day a citation in error was issued, but, without fault on the part of the plaintiff in error, was not served until January 5,1885. On January 16, 1885, only three days before tne day designated for the call of the assignment to which the cause belonged in the supreme court, the defendant in error waived, in writing, the twenty days required by law in cases of service of writs of error, entered nis appearance :n the latter court, and consented to a hearin gof the cause at that term. The plaintiff in error moved for a continuance of the cause to the next succeeding term, on the ground that he was not obliged to prepare the cause and submit it at the then term of the supreme court. Held:
    
    (1) That the citation in error having been served within less than twenty days before the first day of the assignment to which this case belonged, the cause was returnable to the next succeeding term of the supreme court at Galveston ;
    (2) That the plaintiff in error had the right to so treat it, and no act of the defendant in error, done after the service of the writ was perfected, could change the rights or the position of the plaintiff in error, so as to impose on him burdens or duties more onerous than were required by the statute;
    (3) That the provision of the statute (R. S., art. 1034) as to the twenty days which must elapse between the service of the citation and the commencement of the assignment, in order to give the supreme court jurisdiction at a particular term, is as much for the benefit of the plaintiff in error as the defendant in error. It was thereby intended to give him time within which to make out his briefs, have his transcript ready, and otherwise prepare his cause for submission in the supreme court; and the fact that the defendant in error has had the transcript made out, and has waived the filing of briefs, as required by law and the rules of court, cannot affect the question. The plaintiff in error must have the right to do all these things at the time and in the manner prescribed by law, and he cannot be forced to accept the courtesy of the opposite party, and thereby give the court jurisdiction at a time when it would not otherwise attach.
    Error from Walker. Tried below before the Hon. Herman G. Kittrell.
    On motion of appellant for a continuance. The facts upon which the motion is based sufficiently appear in both the opinion and the syllabus.
    
      Baker, Botts & Baker, for the motion.
    
      L. A. Abercrombie, against the motion,
    cited: McGuire v. Newbill, 54 Tex. 317, 318; Wilson v. Adams, 50 Tex. 13, 14; Hohenthal v. Turnure, 50 Tex. 1.
   Willie, Chief Justice.

The judgment in this case was rendered in the district court, on November 11, 1884. Petition for writ of error and supersedeas, and a supersedeas bond and assignment of errors, were filed in that court on December 12, 1884. A citation in error, issued on the same day, which, without fault on the part of the plaintiff in error, was not served till the fifth of the present month. On the sixteenth of this month, and only three days before the day designated for the call of the assignment to which the cause belonged, the defendant-in error waived, in writing, the twenty days required by law in cases of service of writs of error, entered his appearance in this court, and consented to a hearing of the cause at the present term. The plaintiff in error now moves for a continuance of the case to the next term, on the ground that he is not bound to prepare the cause and be ready to submit it at this term of the court.

Our Bevised Statutes provide that, where a citation in error is served less than twenty days .before the day of the term of the supreme court designated for the trial of causes brought from the county in which the writ of error was taken, the transcript shall be filed at the next succeeding term thereafter.

The citation in error in this case having been served on the fifth of the present month, and the assignment to which the cause belonged commencing on the nineteenth of the month, the cause was returnable to the next term of this court at Galveston.

The plaintiff in error had a right to so treat it; in fact, he was not authorized to treat it otherwise. He could not, by any act of his, have forced its consideration at the present term, and was not expected to prepare it with a view of having it submitted before the Galveston term, 1886. Neither could any act on the part of the defendant in error, done after the service was perfected, change the rights or position of the plaintiff, so as to impose on him burdens and duties more onerous than were required by the statute. The provision as to the twenty days which must elapse between the service of the citation and the commencement of the assignment, in order to give this court jurisdiction at a particular term of the court, is as much for the benefit of the plaintiff as of the defendant in error. It was intended to give him time to make out his briefs, have his transcript ready, and otherwise prepare his cause for submission here. The fact that the defendant in error has had the transcript made out, and waived the filing of briefs, as required by law and the rules of court, cannot affect the question. The plaintiff must have the right to do all these things at the tim,e and in the manner prescribed by law, and he cannot be forced to accept the courtesy of the opposite party, and thereby to give the court jurisdiction, at a term at which it would not otherwise attach. It might not suit the convenience of this court to allow an extension of time for the plaintiff in error to prepare his case. The law allows the time before the beginning of the assignment, and the court cannot be forced, at the instance of an appellee, and for the purpose of bringing on his cause at a term previous to the one at which it is properly cognizable, to vary the requirements of the law, to the disadvantage of an appellant, who protests against such action. What might be the effect of an agreement of both parties to the hearing of the cause at the present term, it is unnecessary for us to decide, as no such agreement has been made. The motion of plaintiff in error will be granted, and the cause continued to the next term.

Motion Granted.

[Opinion delivered January 22, 1885.]  