De Leon v. Owen , 3 Tex. 153 ( 1848 )

Mr. Justice Lipscomb

delivered the opinion of the court,

Mr. Justice WheeleR

dissenting.

In this case, the record was filed and the cause docketed on the 10th of January of this term.

The appellee, by his counsel, now moves to affirm the judgment, on the ground that it was not filed within the three first days of the term. The first part of the 4th section of an act amending the 22d section of an act to organize the supreme court, which amendatory act was passed at the last session of the legislature, authorizes this court, at its discretion, or on motion of the appellee or defendant in error, if the record has not been filed within the three first days of the term, unless good cause is shown why the transcript was not filed in due time, to affirm the judgment against the appellant or plaintiff in error, as the case may be, and the securities in the appeal or writ of error bond, which shall be done without reference to the merits of the cause, contained in the copy of the record.

This provision of the section presupposes that the record is filed, but not in due time; aud the motion for an affirmance is founded on the fact that it has not been in due time. This motion can be made at any time after the three first days of the term. -The second part of the amended section authorizes the defendant m appeal, or writ of error, after the thirtieth day of the term, to file the record, if it has not been filed, and ask an affirmance.

These legislative rules are certainly very stringent, but there is no ambiguity in them; the most liberal provision, and, indeed, the only one that seems to allow any discretion, is, that the record, if filed within thirty days, can be sustained on the docket, if cause sufficient, in the opinion of the court, is shown why it was not filed in due time. Legislative rules are inflexible; and, when explicit and clearly understood, they must be enforced, without regard to the individual injury that may be the result. If these rules were established by the courn to secure the dispatch of business and promote the ends of justice, the court would be competent so to modify them as to prevent any particular hardship or serious-injury.

But to apply the above exposition of the law to the case before us, the motion must be sustained, unless the appellant has shown sufficient cause for the delay in not filing the record in due time.

The showing is, that about the 18th of December the record was mailed at Victoria, addressed to the clerk of the court, without the postage being paid; that the clerk had been delayed in the court below in preparing the record, for want of suitable paper.

Now, a person using ordinary prudence in relation to his business would not have depended on the mail; and if its uniform regularity would have justified his using that conveyance, he surely would have paid the postage.

The showing is not sufficient; the motion must prevail.