Bowen v. Davis
| Decision Date | 01 January 1877 |
| Citation | 48 Tex. 101 |
| Court | Texas Supreme Court |
| Parties | WILLIAM H. BOWEN AND WIFE v. B. R. DAVIS & BRO. |
OPINION TEXT STARTS HERE
ERROR from Anderson. Tried below before the Hon. R. S. Walker.
This was a suit by Davis & Bro. against W. H. Bowen, upon thre?? promissory notes, and to foreclose a mortgage upon a lot in the town of Palestine. Selie E. Bowen, wife of defendant, intervened, claiming the lot as part of the homestead. Judgment for the amount of the notes and for foreclosure of the mortgage was rendered, upon a verdict rendered June 28, 1876, by ten of the twelve jurors impaneled to try the case.
Bowen and wife sued out a writ of error, assigning as error the insufficiency of the verdict.
T. T. Gammage, for plaintiffs in error.
Though a number of grounds for a reversal of the judgment in this case are suggested in the assignment of errors, the only one upon which plaintiffs' counsel insists is, in effect, that there is no valid or legal verdict in support of the judgment; but, on the contrary, the supposed verdict upon which the judgment was rendered is invalid, because it appears from the record that a jury of twelve men were impaneled to try the cause, and that none of them are shown to have died, or have been disabled from sitting, yet only ten of the jury concurred in said verdict.
In support of this objection to the judgment, we are cited, by counsel, to the nineteenth section of the act “to regulate grand juries, and juries in civil and criminal cases, in the courts of this State,” approved August 1, 1876. By this statute, the Legislature has unquestionably changed or modified the rule prescribed in section 13, article 5, of the Constitution, authorizing a verdict in civil causes, and in criminal cases below the grade of felony, in the District Court, on the concurrence of nine of the jurors. But as this statute did not become a law until more than a month after the verdict and judgment in the court below, we do not perceive how it could be supposed to affect this verdict; and counsel have not attempted to show it can do so. From his brief, we infer that he overlooked the fact that the case was tried in the District Court prior to the passage of the law to which he refers, or that he supposed the constitutional provision authorizing a verdict in the cases therein referred to, on the concurrence of nine jurors, required legislative action to give it effect. But the Constitution itself plainly forbids our giving it such a...
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V. R. S., In re
...to do, changed the rule by its statute approved August 1, 1876, to require the unanimous concurrence of the twelve jurors. Bowen v. Davis & Bro., 48 Tex. 101 (1877). The unanimity rule remained in effect until the modification of Rules 291 and 292, T.R.C.P., to provide, effective February 1......
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McDaniel v. Yarbrough
...passed a statute in accordance with this constitutional provision that required jury verdicts to be unanimous. See Bowen v. Davis, 48 Tex. 101, 102 (1877) (citing Act of Aug. 1, 1876, 15th Leg., R.S., ch. 76, § 19, 1876 Tex.Gen.Laws 78, 82, reprinted in 8 H.P.N. GAMMEL, LAWS OF TEXAS 835, 9......
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Threadgill v. Hopson
...Ann. Texas Revised Civil Statutes Annotated, effective on August 1, 1876, a verdict of nine jurors concurring was valid. Bowen v. Davis, 48 Tex. 101 (1877). This Act of the Legislature followed out the power committed to it by that same section of the Constitution, and it was not to enact a......
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Renfro v. State
...Legislature was empowered to change or modify the rule therein set out in regard to this particular matter. This was also held in Bowen v. Davis, 48 Tex. 101. The act of the Legislature with reference to this matter is article 765 of the Code of Criminal Procedure, as "In cases of misdemean......