ON MOTION TO DISMISS. On the 4th day of December, 1889, in the District Court of Mitchell County, defendant in error recovered a judgment against plaintiff in error, in a garnishment proceeding, for the sum of $3764, from which plaintiff in error, through its attorney, attempted to prosecute a writ of error.
On the 25th day of February, 1890, he filed its petition and bond for a writ of error and had citation promptly issued. He applied for and obtained from the clerk of said court a transcript of the record, which he caused to be filed in the Supreme Court on the 3rd day of May, 1890, at which term of the Supreme Court the cause was submitted on his brief. *Page 152 Owing to the crowded condition of the docket of that court, the cause was not reached for final disposition till the 7th day of June, 1892, when judgment was rendered reversing and remanding said cause.
Thereafter, on the 13th day of June, 1892, the defendant, by attorney, filed in said cause a motion for a rehearing, which, on the 25th day of June, 1892, was sustained by the Supreme Court, and the judgment previously entered vacated, and the cause was stricken from the docket, because the transcript failed to show that the citation in error had been served.
Thereafter, on the 20th day of June, 1892, plaintiff in error caused an alias citation to be issued and served on defendant in error, and again filed the transcript in the Supreme Court on the 30th day of September, 1892.
On the 1st day of October, 1892, defendant in error filed his motion in the Supreme Court to dismiss plaintiff's writ of error because plaintiff had permitted over two years to elapse after filing its petition and bond before having defendant cited, and because three terms of the Supreme Court had passed after the filing of the petition and bond before it had caused citation in error to be served on defendant. This motion, with the transcript, having been transferred to this court, has been submitted for our determination, in connection with the answer of plaintiff in error to the motion and upon affidavits relating to the diligence or negligence of plaintiff in error, and especially on the issue as to whether the original citation in error was ever served.
Our conclusion, from the affidavits and other matters submitted, is, that according to a preponderance of the evidence, the original citation in error was never served. We further conclude, that plaintiff in error, the First National Bank of Montague, Texas, relied solely upon its attorney to take the necessary steps to prosecute its writ of error, and that this attorney was under the erroneous impression, when he filed and submitted the record in the Supreme Court and thereafter until the case was decided by the Supreme Court, that the original citation in error had been served. We are also of opinion, that he probably at the time had good reason to believe that the citation had been served; but that owing to the lapse of time intervening and the loss of the original papers in said cause, he has been unable to show the particular facts or circumstances which probably misled him.
We find, that the judgment in favor of defendant in error was suspended by a good and sufficient supersedeas bond, and that no injury is likely to result to defendant in error from the delay in the prosecution of this writ of error. We find, that neither plaintiff in error nor its attorney has been guilty of any intentional neglect in prosecuting the writ of error, but that the delay has resulted from a mistake of fact on the part of counsel for plaintiff in error. We are further of the opinion, *Page 153 though there is no direct proof upon this point, that it may be inferred that defendant in error has silently acquiesced in the delay.
The law provided heretofore, that a writ of error might be prosecuted at any time within two years after final judgment. We know of no statute which requires us to dismiss this writ of error. We conclude, under the foregoing findings of fact, that the plaintiff in error has not been guilty of any such inexcusable neglect to prosecute this writ of error as would justify us in denying it a hearing upon this record, especially in view of the fact that it is brought conspicuously to our notice that the highest judicial tribunal in this State has already (under a mistake of fact) reviewed the record, and declared by their judgment that defendant in error is not entitled, by virtue of the judgment below, to recover of plaintiff in error the sum of money which, by this proceeding, it seeks to avoid paying. Certainly this decision of the Supreme Court justifies the inference, that the writ of error which plaintiff seeks to prosecute is not without merit; and we think that the rights of defendant in error will not be prejudiced by overruling this motion. In equity, relief will sometimes be granted against a mistake caused by the want of ordinary care, if the other person is not prejudiced thereby. 2 Pome. Eq., 856.
While we have had difficulty, under the decisions of our Supreme Court, in reaching these conclusions, we are of opinion, without here reviewing the several cases examined, that in overruling this motion we commit no error; and if error there be in so doing, it would seem to be on the side of justice.
While Mr. HEAD, Associate Justice, concurs in the conclusions reached, he does so more on account of the views expressed by Chief Justice Roberts in his separate opinion in the case of Overton v. Terry Huffman, 49 Tex. 773, which meet his approbation, than for the reasons stated above. He doubts the sufficiency of the excuse shown in the failure to sooner have the citation in error served. See opinion, also, of Justice Gould in that case on the effect of acquiescence.
The motion will be overruled.
Motion overruled.