Doss v. Waggoner , 3 Tex. 515 ( 1848 )

Chief Justice Hemphill

delivered the opinion of the court.

The ground of alleged error is common to the judgments in the above causes, viz.: that they were rendered by the district court at a time when, by law, that court had no power to hear and determine causes.

At the first session of the legislature of the state, the district court was directed to be holden in the county of Lamar on the ninth Monday after the first Monday in March, and the third Monday in September. [1 vol. State Laws, p. 275.]

At the last session, the times of holding this court were changed to the third Mondays in April and October [2 vol, State Laws, p. 135], and this session of the legislature was adjourned on the 20th March, 1848. By a general law approved 16th January, 1840 [pp. 6 and 7, 4 vol. Laws], statutes do not become of force until forty days after the adjournment of the legislature .by which they are adopted, unless in the act itself some other time is specified for its commencement.

Under this rule, the law of the last session went into effect on the first day of May, at which period the time prescribed for the spring session of the court had already passed; and it is contended that, as the constitution requires district courts to be holden in each county at least twice each year, that the judge was authorized to hold the spring term of the court at the time prescribed by the former law, viz.: on the ninth Monday after the first Monday in March.

The constitution, although requiring that there should be two sessions of the district court in the several counties annually, confers no discretion on the judge as to the time and manner in which these courts shall be holden. They must be prescribed by law; and if but one session be directed, there is no power in the judiciary to order another at a time and in a manner not provided for by the statutes.

The court had nb jurisdiction to try and determine causes at the time these judgments purport to have been rendered. There was, in fact, no court in session, and no judgments could by law have been pronounced; and, consequently, they are not only absolute nullities, in the ordinary signification of the term, when applied to judgments of courts having no jurisdiction over the subject matter of the parties, but they are not even the acts of a court, and are, therefore, not susceptible of appeal or the subjects of revision in an appellate tribunal.

This distinction has been recognized in the cases of Hodges vs. “Ward & Ingram [Texas Eeports, vol. 1. p. 244], Baker et al. vs. Chisholm et al., decided at this term [vide 23 Pickering].

The appellant has mistaken his remedies, if any were required against these pretended judgments; and it is ordered that the causes be stricken from the docket at his costs.