Adm'rs of Weatherford v. Weatherford , 8 Port. 171 ( 1838 )

COLLIER, C. J.

— Two points have been made by the plaintiffs in error.

1. The judgment is rendered de bonis propriis, when it should have been de bonis intestatis.

2. The judgment was rendered at a time when the law did not authorise the court to be holden.

First. — The cause of action, as shown by the declaration, being a liability incurred by the intestate of the plaintiffs, there can be no doubt, but the judgment should have been rendered de bonis intestatis. But as the judg* ment of the Circuit court would either be reversed and rendered, or corrected as for a clerical mistake under the statute, and the case could not be remanded,-r-we proceed to consider the second point.

, Second. — Previous .to the twenty-second December, eighteen hundred and thirty-six, the Spring term of the Circuit court for the county of Conecuh, was required to be holden on the first Monday in March. On that day, a law was enacted, entitled “An act to change the time of the courts of the eighth judicial circuit of the State of Alabama;” the fifth section of which is as follows: “That hereafter, the Circuit courts of the first judicial circuit, shall be commenced and holden as follows: In the county of Conecuh, on the third Monday in March; in the county of Monroe, on the fourth Monday of March; in the county of Washington, on the second Monday after the fourth Monday in March; in the county of Baldwin, on the third Monday after the fourth Monday in March; and in Mobile, on the fourth Monday after the fourth Monday in March, and continue in session until the business is ended” — (Acts of 1836, pp. 8.) On the twenty-third December, eighteen hundred and thirty-six, a law was passed, entitled “An act, the better to organise the Circuit courts of Biobile county, and to regulate the proceedings therein, and for other purposes;” the second section of which is in these words: “ That from and after the passage of this act, the Spring term of the first judicial circuit shall be holden at the times following, to wit: In the county of Conecuh, on the third Monday in March, in each and every year, and continue one week; in Monroe, on the fourth Monday in March, and continue one weelc; in Clarke, on the first Monday in April, and continue one week; in the county of Washington, on the second Monday in April, and continue one week; in the county of Baldwin, on the third Monday in April, and continue one week; and in the county of Mobile, on the fourth Monday in April, and continue until the whole of the business is disposed of.” This statute then provides for the fall terms of the circuit, and contains several regulations in regard- to juries in Mobile county, and concludes with the following proviso: “Provided, This act shall not take effect until the first day of August next.”

The first statute, it will he observed, is silent, in regard to the Spring term of the Circuit court of Clarice, yet this omission can have no influence upon the act, so far as it may be operative. That court should have been holden at the time appointed by the pre-existing law, even though it should conflict with some other court in the circuit; so as to make it impossible for the same judge to hold both. A difficulty of the kind once occurred in the organization of the courts of the second circuit. .By an act of the sixteenth January, eighteen hundred and thirty-four, the courts of Wilcox and Bibb were directed to be holden on the same day, and both were actually holden — the judge appointed to the circuit, calling to his aid another judge, to hold the Spring and fall terms in Bibb county, for the year eighteen hundred and thirty-four.

A statute, according to the settled rule in the courts of the United States, and of the States of the Union, where no time is fixed for the commencement of its operation, takes effect from its passage —(1 Kent’s Com. 426, and cases there cited.) Taking this as the true rule, the act of the twenty-second December was in full force, when that of the twenty-third December was enacted; and the question now is, did the latter statute" either expressly or impliedly repeal the former. It is clear, that it is not an express repeal, for the act of the twenty-third of December no where notices that of the twenty-second. Nor can we.conceive how it can operate an implied repeal— they do not come in coflict — the statute of the twenty-third is suspended in its operation by the proviso we have quoted, until the first day of August next after its passage, and could not until that day, annul, by its repugnance, a pre-existing law. The question, then, of a repeal by implication, could not arise until the last act became operative, and then not sooner than the time appointed for the Spring circuit in eighteen hundred and thirty-eight, before which, the-legislature, by a subsequent enactment, removed all difficulty.

Dwarris, in his treatise on statutes, says that “An act cannot be altered or repealed in the same session in which it is passed, unless there be a clause inserted, expressly reserving a power to do so” — (pp. '673.) The author refers to no adjudicated case, and the view we have taken of the present case, relieves us from enquiring whether the fact of both acts having been passed at the same session of the legislature, makes a difference favorable to the plaintiffs, as it is clear it does not prejudice them.

The judgment complained of, having been rendered at the term of a court, hoi den at a time unauthorised by law, though the proceedings have all the forms necessary to give to it validity, it is nevertheless erroneous. The statutes appointing the times for the courts to be holden, are public acts, and must be noticed by this court.

The judgment of the Circuit court must therefore- be reversed, and the cause remanded.