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 *559to 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.]