Mills v. Bagby , 4 Tex. 160 ( 1849 )

Lipscomb, J.

In this case the defendant in error lias filed the record aud asked an affirmance of tho judgment, without reference to the merits of the canse contained in the copy of the record, under the provisions of the; 4th section of the act of the Legislature of 184S, entitled “An act to amend sections ¡ten, elven, thirteen, and twenty-two.” (Acts 1S48, page 72.) The section reads as follows: “That when the copy of any record of any appeal or writ of error shall not be filed with the clerk of the Supreme Court on or before the third day of the term next succeeding the taking- of the appeal or writ of error, it shall be lawful for the court, in its discretion, or on motion of the defendant in appeal or writ of error, and no good cause shown why the transcript, of tlie record was not. tiled in due. time, to affirm the judgment against the appellant or plaintiff in error, as the case may be, and his or their securities in the appeal bond; which shall be, done without reference to the merits of the cause contained in tile copy of the record. And in case the appellant or plaintiff in error in any cause' shall fail to lile a copy of the record with the c-lerk of the Supreme Court, as contemplated in this section, it shall be lawful fortín; defendant in appeal or writ, of error, at any time, after the thirtieth day from the commencement of the term of the Supreme Court next succeeding 'the taking of the appeal or writ of error, to tile a copy of such record in said Supremo Court. And it shall be the duty of said court, on motion of the defendant in appeal or writ of error, as the case may he, to affirm the judgment against the appellant or plaintiff in error, as tin; case maybe, and his or their securities in the appeal hon’d.” The practice of this court lias been under this statute to consider the reasonableness of any excuse offered by the appellant or plaintiff in error for not tiling the record in the time prescribed by law until after the-expiration of the thirty days from the commencement of the term of the court.. This exercise of discretion we have believed to be fully authorized by the first paragraph in the section cited. Whether such discretion can he exercised after the thirty days is another and a more difficult question to decide. The extent of the State, the situation of the country, presenting so many obstacles to a speedy and certain intercommunication, would necessarily give rise to many accidents and contingencies to defeat, the best arranged efforts to a strict compliance with the law. These considerations have always intlnonced the court in their determination whenever an application lias been made during the time when the right to hear such excusos liad not elapsed.

Have we a right, by a fair construction of tiie law, to exercise the same discretion in cases arising under the second paragraph of the section cited? The divisions of the section, by a false punctuation, are separated only by a semicolon. That they, however, operate on distinct matters, is apparent to every reader. The first is designed to act upon cases brought into court and filed by the appellant or plaintiff in error, and prescribes the consequences of a non-compliance with the rule of law, bat clearly and indisputably leaves it t,o the. court to say whether a good cause was shown why the record was not filed in time. And it necessarily results that if the court should believe there was good cause shown, the consequences of the failure would not be enforced. 'When, however, we pass to the second subject acted on by tiie section, it would seem tiie language of the law is changed; and it is the iangngge of command. It is upon the contingency happening: “And it shall be duty of said court on motion of the defendant in appeal or writ of error, as tiie case, maybe, to affirm the judgment.” From a fair interpretation of the terms in which the law is expressed it would seem that-a. period of time was fixed beyond which no excuse should be heard, and a complete bar interposed. Tiie limitation of twenty-seven days beyond the time when the record ought to have been filed by the appellant or the plaintiff is expressed in as unqualified terms as any law of limitation in our statute-book. And it would not be contended that any excuse could be heard for not bringing up a cause by writ of error within the two years from the rendition of the judgment sought to be revised. As little discretion is intended, it seems, in tiie case under consideration. The law has no doubt been productive of much hardship in some cases. And however much it may be regretted, it is not in tiie constitutional power of the court to modify it so as to let in the exception. If it had rested on a rnle of practice established by the court, it would have been competent for tiie court so to adapt its exercise as to prevent any particular oppression, and make it yield to the particular circumstances of the case; hut being a rule prescribed by the Legislature for our action, leaving us no discretion, we are bound to obey it according to its meaning-, whatever may be the consequences in individual cases.

When the motiou is made by the appellee or the defendant for affirmance of judgment after the expiration of thirty days, on tiie production of the record, as it is an exparie proceeding, we believe that it is the duty of the court to examine tiie record so presented for the purpose of deciding whether it contains enough in it to give jurisdiction. Where it is an appeal, iio citation is required bylaw; but as'tiie statute gives thirty days lo lile a bond, it is believed that the appeal is not consummated until a bond has been filed, although it has been claimed in open court. Wc have no doubt that this anuunciaf ion is often made merely to give counsel time t.o consider on the propriety of taking the judgment up for'revision. If his subsequent reflections should determine, him to do so, that intention is consummated by a compliance with the requisitions of the law. And until this consummation, tiie opposite party has no right to treat it as an appeal, and present the record and ask an affirmance. In truth, until it has been so consummated, there has been no appeal to give jurisdiction to this court; and were the judgment in such case to be inadvertently affirmed by this court such affirmance would be a nullity and wholly void. In cases of records sent up on writs of error, if the record is presented by the defendant in error on a motion to affirm after thirty days, we look to the. citation ; if it lias not been served nor service acknowledged, wo cannot affirm the judgment, because if we were so to do, it would be void. Tiie plaintiff in error lias no right to tiie record or transcript until after tiie service of tiie citation on the opposite party; and if the defendant were permitted to take a transcript before such service and present it to this court and have tiie judgment affirmed, it would preclude the plaintiff from an opportunity of having his rights inquired into in this court, as lie has no right to the transcript until citation is returned into tiie clerk’s office executed. (Acts of 18-16, p. 401, sec. 140.)

Sneh being tiie construction of the different provisions of our statute regnlat-ing appeals and writs of error, wc will proceed to the examination of the record presented in this case, on which a motion lias been made for an affirmance of the judgment. The transcript shows that the judgment was rendered in December', 1S47; that a petition was filed for a writ of error on tiie 2-4t.li October, 184S, and a bond, the conditional part of which sets ont that a judgment had been rendered against the principals, of the date first mentioned, from which the defendant in the judgment liad taken an appeal. This bond lias no date to it. It is approved by tiie clerk without any date of such approval. The citation issued without any date excepting A. D. 1849. The sheriff’s return does not show when received or when executed, bnt that it was served the same day it was issued outlie attorney for the plaintiff in the judgment. The .s vperse-deas bears no date excepting-day of-1S4 — . There is nothing from which we can infer that, the citation was served in time to make the writ of error returnable to tiie present term of this court. It appears with something like certainty that it was issued and served some time in tiie year 1S49. If it was after the commencement of this term of the court, it was returnable to the next term, and could-not have been properly docketed if presented by the plaintiff in the writ of error, nor can it be docketed by tiie defendant. The case must therefore he stricken from the docket, at the cost of the party filing the transcript. In reviewing tiie transcript presented, we are constrained by a sense of duty to notice tiie very reprehensible omissions of his duly on the part of the clerk of the District Court of lied Diver county, cither in making up tiie records of the Court or want of accuracy in transcribing them.

Tiie, bond approved by him is not such as is required by law. It purports to be a bond for the, prosecution of an appeal when no appeal had been taken, but a writ of error. The bond lias no date, nor is there any date (o the. clerk’s approval. The citation, a most important process, has been issued by him without the date of its issuance or tiie date of its return to his office.

Note 65.—Martin et al. v. Latimer et al,, post, 335; Patton v. Laforce, 14 T., 240; Chambers v. Shaw, 16 T., 143; White v. Proctor, 17 T., 406; Crunk v. Crunk, 23 T., 604, overruling Spann v. French, 13 T., 91; Loftin v. Nally, 28 T., 127; Houn v. Burnett, 40 T., 346; H. & T. C. R’y Co. v. Greenwood, 40 T., 361; Halloran v. T. & N. O. R. R. Co., 40 T., 465.

The same culpable negligence appears in the process of supersedeas.

He lias totally disregarded the 7lh rule proscribed by this court for his government. Delinquencies of the character noticed.cannot and will not be permitted. And if again repeated, this court will most assuredly resort to other means to enforce a more faithful discharge of his duty.

Ordered accordingly.