Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 164
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164 STEPRENSON V. T. & P. R. R. Co. [Tyler Term,
Opinion of the court.
Robertson H Terndon, for plaintiff in error.
Stedman & Sexton, for defendant in error.
MOORE, ASSOCIATE JUSTICE.--Th e petition for the writ
of error shows that the counsel by whom it was drawn,
owing to the unusual circumstances of the case, labored
under great embarrassment in determining upon the proper
course of proceeding to secure a review of the judgment.
To guard against any mistake, either in respect to the
parties to the writ or its proper service, they have encumbered
the record with impertinent averments and irrelevant
and unnecessary matter.
The common-law strictness and regularity of proceeding
in writs of error has never been observed or required in
this court. When the practice is in conformity to the
common law, the writ may be quashed on motion on its
return to the appellate court; and if this is not done after
errors are assigned, the parties to the writ demur or plead
to issue, as in an original action. With us the motion to
quash serves the purpose of the motion and demurrer
under the common law. And, instead of reaching an issue
by regular course of pleading, it is made, in our practice,
by an implied traverse of the assignment of errors.
It is the logical result of this difference, in the course of
proceeding in our courts, from that where the strictness
and regularity of the common law prevails that many defects
which would be fatal to the writ, when it is observed,
are not regarded as absolutely essential with us. And
hence it has been held that mere surplusage, or even the
joinder of an improper party in the petition, may be disregarded,
or the irregularity cured, without the absolute
dismissal of the writ. Defects or omissions in the petition
are obviated and supplied by the citation; and the citation
may be corrected or aided by the averments of the
petition. (12 Tex., 38; 16 Tex., 523; 8 Ala., 273; 9 Ala.,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/172/: accessed April 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .