On Motion for Rehearing.
Both plaintiff in error and defendant in error have filed motions for rehearing. Each of these motions have been carefully considered, with the result that we adhere to our views expressed in the original opinion. Defendant in error, however, presents a matter that was not specifically discussed in the original opinion, and earnestly requests that this court express its views in writing thereon, and we shall comply with such request.
The record in this case was filed on December 27, 1930. The judgment of the lower court waá entered June 4, 1930. Plaintiff in error’s motion for a new trial was overruled July 5, 1930, and plaintiff in error duly entered his exception to such ruling, gave proper notice of appeal, and was allowed 80 days from such date in which to prepare and file statement of facts and bills of exception. No record was filed in this court on such appeal. A petition and bond for writ of error were filed by plaintiff in error November 28, 1930, on which citation in error was duly issued and served on defendant in error December 8, 1930.
On January 13, 1931, defendant in error filed a motion to dismiss the writ of error, on the ground that plaintiff in error was sued in his capacity as administrator and the judgment sought to have reviewed was against him as administrator; that, under the law of this state, he was not required to give an appeal bond, and hence perfected his appeal to this court, July 5, 1930, when he caused to be entered upon the minutes of the court notice of appeal, and that, having perfected, such appeal, he could not subsequently in-voire the jurisdiction of this court by means of writ. of error. This motion was overruled by this court without a written opinion.
In his brief, defendant in error again raised the same question by way of suggestion of want of jurisdiction of this court to review the case on the writ of error, because of the perfected appeal claimed to be still pending. Out of deference to defendant in error’s request, we have concluded to express in writing the reason controlling this court in denying the motion to dismiss and in not writing our views on the same question in the original opinion.
In this state a litigant has the statutory right to have a judgment of a district or county court reviewed by a Court of Civil Appeals, either by means of ‘appeal or by means of writ of error, provided he conforms to the statutory requirements for perfecting the chosen method to-secure such review. In the instant case, defendant in error first chose the method by appeal to invoke the jurisdiction of this court, and, as administrators are exempt by statute from filing an appeal bond (Rev. St. 1925, art. 2276), such appeal was perfected July 5, 1930, the day notice of appeal was given. Such notice of appeal gave to this court potential jurisdiction of the cause, but did not give it active jurisdiction to pass upon the merits of the case. This could only have been done by filing the transcript in this court within 90 days from the perfection of the appeal, that is from July 5, 1930. This statutory requirement was not complied with, and hence the only jurisdiction this court acquired on the attempted appeal was to affirm on certificate, provided appellee moved for this relief, and filed the necessary certificate of the clerk of the lower court during the term of this court, to which the appeal was returnable.
Plaintiff in error, however, after he had failed to prosecute the appeal, invoked the jurisdiction of this court, for a review of the judgment, by suing out and prosecuting a writ of error and by causing the record in the lower court to be seasonably filed in this court. Could he do this, after having theretofore perfected an appeal in the lower court? At the time judgment was entered adversely to plaintiff in error, he had the unquestioned right to choose either of the two methods to have the judgment below -reviewed by this court. The record discloses that he first attempted to bring this case before this court by appeal, but that he abandoned the appeal; for an appeal is abandoned when an appellant fails to file the record in a Court of Civil Appeals within the statutory time allowed for such filing (Rev. St. 1925, art. 1839) and sues out a writ of error. Wandelohr v. Grayson County Nat’l Bank (Tex. Civ. App.) 90 S. W. 180; Barber v. Railway Co., 9 Tex. *378Civ. App. 93, 28 S. W. 270; Golden West Oil Co. No. 1 v. Golden Rod Oil Co. No. 1 (Tex. Civ. App.) 285 S. W. 631; Id. (Tex. Com. App.) 293 S. W. 167; 3 Tex. Jur. § 693, p. 976. So, in the instant case, plaintiff in error abandoned his appeal when he perfected his writ of error in the lower court.
Plaintiff in error’s right to pursue the writ of error method of appeal is statutory, and there is no statutory inhibition against a litigant pursuing both statutory methods of appeal, provided in doing so he infringes on no statutory right of the other litigant. In the instant case, the 90 days allowed plaintiff in error within which to file the transcript in this court expired October 4, 1930. Prom such date to the date of the filing of the transcript in this court, December 27, 1930, under the writ of error method to obtain a review of the judgment, defendant in error had the statutory right to file a motion in this court for affirmance on certificate. Article 1841, R. S. ’1925. If defendant in error had availed himself of this right within that time, it would have been the duty of this court to have granted such motion. However, this was a right resting solely with defendant in error and was subject to be lost by a failure to act on such right before the transcript was filed after the writ of error had been perfected. As such right was not exercised by defendant in error, when the record was filed December 27,1930, such right was lost.
The rule above stated, allowing one to abandqn an appeal and sue out a writ of error, has long been a settled rule of law in this state. It is announced by Chief Justice Gaines, in Scottish Union & National Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482, 484, in the following language: “A party who desires to complain of a judgment of the trial court may appeal, abandon his appeal, and then sue out a writ of error, but that this privilege is subject to the right of the appellee to have the judgment affirmed on certificate.”
In an earlier case, Chief Justice Stayton, in Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153, states the same rule in equally as terse language, viz.: “Under Rev. St. art. 1389, which provides that a writ of error may be sued out at any time within two years [now six months] after the rendition of final judgment, the perfecting of an appeal, which is never prosecuted, does not deprive a party of his right to a writ of error, especially where defendant in error, although entitled to an affirmance of the judgment, fails to ask for it during the term to which the appeal is returnable, and the appeal itself in no way obstructed his enforcement of the judgment."
Other authorities applying the rule are: Hawkeye Securities Ins. Co. v. Cashion (Tex. Civ. App.) 293 S. W. 664; Hall v. LaSalle County (Tex. Civ. App.) 46 S. W. 863; Peters Co. v. Green (Tex. Civ. App.) 42 S.W.(2d) 1054; Chambers v. Grisham (Tex. Civ. App.) 155 S. W. 959; Morris v. Morgan (Tex. Civ. App.) 46 S. W. 667; Blackman v. Harry (Tex. Civ. App.) 45 S. W. 610; Harrington v. Blankenship (Tex. Civ. App.) 52 S. W. 585; Louisiana-Rio Grande Canal Co. v. Quinn (Tex. Civ. App.) 160 S. W. 151; Western Union Telegraph Co. v. White (Tex. Civ. App.) 143 S. W. 958; 3 Tex. Jur. § 17, p. 56, § 694, p. 977.
We therefore hold that this court did not err in overruling defendant in error’s motion to dismiss the appeal, and did not err in overruling the same contention made in defendant in error’s brief. Both motions for rehearing are overruled.