Campbell v. Townsend , 26 Tex. 511 ( 1863 )

Wheeler, C. J.

Two objections were urged to the admission in evidence of the transcript of the judgment and execution from the County Court, which it is material to consider: 1st. That the judgment therein recited is void for want of certainty. 2d. That after the passage of the act of the 26th of January, 1839, (Hart. Dig., art. 265 to 268,) the County Court had not jurisdiction of the case or the rightful custody of the record, and the clerk thereof was without authority to issue the execution, or certify to the copy of the record as the keeper thereof.

It must be admitted that the judgment is very meagre, and if rendered at this day would scarcely be held sufficient to support an execution. But when we consider the tribunal by which it was rendered, the loose practice that prevailed, the length of time that has elapsed, and that all the other papers in the case that might have been referred to, to supply its deficiences, are lost; and when it is considered further, that shortly after its rendition the defendants therein admitted its rendition and amount by their petition in the District Court to enjoin its execution, we should hesitate, in a collateral proceeding, to pronounce it void. Under particular circumstances of such a nature, courts, it is believed," have sustained judgments as wanting in certainty as the present. (Luter v. Rose, 16 Tex. R., 52, and cases cited.)

But it would bp very difficult to give a satisfactory answer to the remaining objection to the admission r.of the trans'cript in evidence. The act of the 26th of January, before cited, (Hart. Dig. art. 265,) repealed the 6th section of the act of the 20th of December, 1836, (Id. 235,) which conferred on the County Court-jurisdiction to render the judgment, and provided that thereafter the chief justices of counties should “ sit and exercise the powers of probate judges, conservators of the peace, commissioners of roads and revenues, and notaries public,” (Id. art. 265,) and that “ appeals from justices’ courts shall, as heretofore, be returnable to the County Courts.” (Id. art. 268.)

This is the enumeration of powers of the County Courts and the judges thereof, by the act of the 26th of January, 1839; and it is expressly declared that, “ froto and after the passage of this act, all powers and jurisdiction granted by law to the respective County Courts of this republic, not enumerated and defined in this act, be, and the same are hereby repealed.” (Id. art. 265, §2.) Thus it is seen that the jurisdiction of the County Court was taken away befine the issuance of the execution in this case. It would seem, therefore, that no further proceeding could be had in the case in that court. It would be difficult to invoke any recognised principles upon which the clerk of the court could issue an execution in the case after the jurisdiction of the court had been taken away. But tlie 4th section of the act goes further, and provides for transferring the cáse to the District Court, in these terms: “ From and after the passage of this act, all process heretofore issued for an amount of one hundred dollars and upwards, created by the law of 1836, shall, by the judge and clerks of the respective County Courts of each county, be returned to the first term of the District Court of counties respectively ; and any judge or clerk of the respective counties neglecting to comply with this act, shall be considered guilty,” &e, The direction for the returning of “ process” to the District Court-might be construed to mean that the process only was to be returned to that court in cases instituted and pending in the County Court. But when the whole provision is considered, that manifestly was not the meaning of the statute. If the process only was to be returned to the District Court, the direction would have" been to the sheriff, whose- duty it is to return “ process.” But the duty is enjoined upon the judges and clerks, -and the intention manifestly was that the record of the cause should be transferred from the court from which the jurisdiction had been taken away, to that upon which it was conferred. The word 11 process” is used in the sense of proceedings, embracing, it is concluded, the whole record.

This view of the statute would lead to the conclusion that the clerk of the County Court had no authority to issue execution, or to attest a copy of the record for the purposes of evidence, he no longer being the legal keeper thereof, and it must follow that the objection to the admissibility of the transcript was well taken and ought to have been sustained. The transcript certainly was not admissible upon the certificate of the clerk of the County Court. This objection may be removed upon another trial, and it may become necessary to decide upon the effect of the lapse of time upon the defendant’s title, and that may depend on other circumstances which do not now appear by the record; as whether possession has been taken and held under it for any considerable length of time. It may, however, be material also to consider whether the defendant has any equity by reason of having satisfied the judgment recovered against the plaintiff, for which reparation should be made before he is dispossessed of the property. (Howard v. North. 5 Tex. R., 290.)

As the case is presented, it is unnecessary at present to consider these questions.

The judgment is reversed and the cause remanded.

Reversed and remanded.