J. P. Webster & Son v. Lucas , 288 S.W. 469 ( 1926 )

This cause was tried in the district court of Callahan county, which court may by law continue in session only four weeks. Appellants reside in Stephens county. Judgment was rendered on November 18th, and notice of appeal given. The term adjourned November 26th. Appeal bond was filed December 24th. Appellees have moved to dismiss the appeal because the appeal bond was not filed within 20 days after adjournment.

That part of article 2253, Revised Statutes 1925, which is applicable here, provides:

"Such bond or affidavit shall be filed with the clerk of the trial court within twenty days after the expiration of the term or after notice of appeal is given when the term continues by law more than eight weeks, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county."

The above is the 1925 codification of article 2084, Revised Statutes 1911, Vernon's Civil Statutes 1914, and that part of said article 2084, which relates to the part of article 2253 copied above, was as follows:

"And by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. It the term of the court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after the notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county."

Said article 2084, Revised Statutes 1911, was uniformly construed to require the filing of the appeal bond within 20 days after adjournment, when the appellant resided out of the county, and the term of the court could not by law continue more than 8 weeks. Nash v. Noble,52 Tex. Civ. App. 125, 114 S.W. 848; Simpson v. Baker,57 Tex. Civ. App. 460, 122 S.W. 959; James v. Golson (Tex.Civ.App.)165 S.W. 896; Hartsough-Stewart Const. Co. v. Harty Voglesang (Tex.Civ.App.) 183 S.W. 1.

It is contended by appellants that said article 2253 has changed the rule as declared in the decisions cited above, so that now the time to file an appeal bond, where the term of court lasts less than 8 weeks, is 20 or 30 days after adjournment, according to whether the appellant resides in or out of the county where the trial is had. Appellees by their motion assert that the change in the verbiage of said article has not worked a change in the law, but the law remains as it was before the codification of 1925.

It will be noticed that no punctuation marks are to be found in that part of article 2253 after the word "term" or before the word "or," and without such punctuation marks the statute is susceptible of two constructions. If the word "or" is to be regarded as merely an alternative article between the phrases "after expiration of the term" and "after notice of appeal is given," then appellants' contention would be correct. On the other hand, if said word "or" is to be regarded as a co-ordinate conjunction connecting two independent clauses, the appellees' contention is correct, because, in construing article 2253, in such case it would be necessary to supply the words "such bond or affidavit shall be filed with the clerk of the trial court within twenty days" after the word "or," and, if the words last above quoted were supplied, the statute would be construed as if it read as follows:

"Such bond or affidavit shall be filed with the clerk of the trial court within twenty days after the expiration of the term; or such bond or affidavit shall be filed with the clerk of the trial court within twenty days after notice of appeal is given when the term continues by law more than eight weeks, if the party taking the appeal resides in the county, and within thirty days if he resides out of the county."

This construction would clearly require the filing of an appeal bond within 20 days after adjournment in all cases where the term did not continue longer than 8 weeks.

The statute being susceptible of two constructions as stated, it is concluded that we cannot impute to the codifiers and the Legislature an intention to change the law, unless such intention is plainly manifest, and that we should therefore give to this statute a construction in harmony with that given to article 2084.

Therefore the motion to dismiss the appeal is sustained, and the opinion disposing of the appeal on its merits is withdrawn, and the appeal and all pending motions are ordered dismissed.