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: 168
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168 STEPHENSON V. T. & P. R. R. Co. [Tyler Term,
Opinion of the court.
been made, either by showing the terms of consolidation
agreed to by said companies, or proof of the continued
separate corporate existence of the Southern Pacific Railroad
Company subsequent to said consolidation. From
these premises, we think, it clearly follows that the defendant
in error is not, as is insisted, a stranger to the
record, but is, ii fact, the party in whose favor the judgment
stands, and against whom alone the writ of error
can be prosecuted. (Paine v. Lake Erie and Louisville
R. . Co., 31 Ind., 283; The Indianapolis, Cincinnati and
Lafayette R. R. Co. v. Jones, 29 Ind., 465; Racine and
Mississippi R. Co. v. The Farmers' Loan and Trust Co.,
49 I11., 331; Ohio and Mississippi R. R. Co. v. Wheeler, 1
Black, 286; Commonwealth c. Atlantic and Great Western
R. R. Co., 53 Pa. St., 9; 21 Ill., 451; 25 Ill., 353; Philadelphia,
&c., R. R. Co. v. Howard, 13 Iow., 309; Mosier v.
Hilton, 15 Barb, 657.)
The citation in error was not properly served. The defendant
in error cannot be regarded as a foreign corporation,
or in a legal sense as absent from or a non-resident
of the. State. The service of the citation upon the attorneys
of record was, therefore, unwarranted and improper;
nor was that upon the officer, discriminated in the return
of the sheriff as the local treasurer," authorized by the
statute. (Pas. Dig., art. 4888.)
But the want of proper service of the citation in error
was obviated by the voluntary appearance of the defendant,
as shown by the agreements for continuance and removal
of the case from the Austin branch of the court, to
which it was returned, to that at Tyler, where the motion
to dismiss was first made. It mav be also added that the
objection to the service of the citation was not presented
within the time prescribed by the rule of the court in reference
to exceptions of this character.
The other grounds assigned in the motion to dismiss
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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/m1/176/: accessed June 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .