Bean v. J. I. Case Threshing Mach. Co.

• Decision Date: 24 March 1920
• Docket Number: (No. 1630.)
• Citation: 221 S.W. 634
• Parties: BEAN et ux. v. J. I. CASE THRESHING MACH. CO.
• Court: Texas Court of Appeals

221 S.W. 634

BEAN et ux. v. J. I. CASE THRESHING MACH. CO.

(No. 1630.)

Court of Civil Appeals of Texas. Amarillo.

March 24, 1920.

Rehearing Denied April 28, 1920.

Error from District Court, Dallas County; W. F. Whitehurst, Judge.

Action by the J. I. Case Threshing Machine Company against L. L. Bean and wife. There was a judgment for plaintiff, and defendants bring error. Affirmed.

Synnott & Dugan, of Dallas, for plaintiffs in error.

Spence, Haven & Smithdeal, of Dallas, for defendant in error.

HUFF, C. J.

The defendant in error, J. I. Case Threshing Machine Company, sued L. L. Bean and wife, plaintiffs in error, on two notes, each for the sum of $706.40, dated the 20th day of May, 1910, due, respectively, November 1, 1911, and November 1, 1912, and to foreclose a mortgage lien on certain real estate, and also to foreclose a chattel mortgage on personal property. The defendants in error plead an acknowledgment of the justness of the indebtedness by plaintiffs in error in writing, and the facts in the case seem to be undisputed that the justness of the indebtedness was admitted in writing, and would be sufficient to stop the running of the statute of limitation under article 5705 of the Revised Statutes. It is contended, however, by plaintiffs in error, that articles 5693, 5695, as amended by the regular and called sessions of the Thirty-Third Legislature (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5693-5695), are the statutes which control the statute of limitation in this case. The plaintiff in error answered by exception on the ground that the petition showed that the cause of action was barred by the statute of limitation and also plead the four-year statute of limitation. The only issue, therefore, is one of limitation.

Plaintiffs in error present the following proposition under their assignments:

"By the act of the regular session of the Legislature of 1913, the holder of these notes was given four years from the time that act took effect, to wit, from the 1st day of July, 1913, in which to file suit, and by the act of the first called session of the same Legislature they were given four years from the 19th day of November, 1913, in which to file suit, and inasmuch as, when the second act took effect, 4 months and 19 days had run under the first act, these holders had only 3 years 7 months and 11 days after the new act took effect, or until July 1, 1917, in which to file their suit, and since the suit was not filed until July 17, 1917, the notes and right of foreclosure were barred by the statute of limitation."

The rule invoked by plaintiff in error is that of proportion. The cases in which this rule has been applied, in so far as our attention has been called to it, were cases in which the new statute shortened the period of limitation. It was said by the Supreme Court in Wright v. Hardie, 88 Tex. 653, 32 S. W. 885:

"The Legislature may provide a shorter period of limitation for existing causes of action. It may make a statute of limitaton for causes where none existed before, but it cannot, by so abbreviating the time in which suit must be brought, take away the right of action altogether. It must allow a reasonable time after the law goes into effect to bring suit upon actions which are not then barred. Where the time has been shortened, and the statute has been running against the cause of action, at the time the new statute takes effect, the rule adopted by the decisions of this court has been to apply absolutely neither the old law nor the new, but to allow such proportion of the unexpired period under the old statute as * * * prescribed * * * bears to the period limited by the new. Odum v. Garner, 86 Tex. 374, 25 S. W. 18, and cases cited." Gautier v. Franklin, 1 Tex. 732.

In passing we may say it has occurred to us that article 5712, R. C. S., may have some bearing on the question here at issue; but on looking into the matter under our decisions we have arrived at no satisfactory conclusion as to the effect which should be given that article in this case, or whether in fact it has any controlling effect. See Rucker v. Dailey, 66 Tex. 284, 1 S. W. 316; Boon v. Chamberlain, 82 Tex. 480, 18 S. W. 655; Meyer v. Andrews, 70 Tex. 327, 7 S. W. 814; Voigt v. Railway Co., 94 Tex. 357, 60 S. W. 658; Id. 59 S. W. 578. It has been said repeatedly as to all causes of action not actually barred the Legislature has the power to prolong the period of limitation or remove the bar altogether. Mellinger v. City of Houston, 68 Tex. 36, 3 S. W. 249; Voigt v. Railway Co., 94 Tex. 357, 60 S. W. 658; Wheeler v. Jackson, 137 U. S. 255, 11 Sup. Ct. 76, 34 L. Ed. 659.

Article 5695, as amended by the first called session of 1913 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5695), being constitutional in giving 4 years after the act takes effect in which to bring suit on the claim in question, which was not at that time barred, and which act, with reference to the extension of the period, is clear and unambiguous in its terms, courts are without authority to write into it a different meaning by construction or by the...