Burr v. Lewis
| Decision Date | 01 January 1851 |
| Citation | 6 Tex. 76 |
| Parties | BURR AND OTHERS v. LEWIS. |
| Court | Texas Supreme Court |
To constitute an appeal the appellant must give notice of appeal during the term, and within twenty days after the term give bond for the prosecution of the appeal. If both requisites are not complied with, the jurisdiction of the Supreme Court does not attach. (Note 12.)
Where time is to be computed from or after a certain day, or from an act done, the day on which the act is done must be excluded, unless it appear that a different computation was intended.
The Supreme Court cannot entertain an application for a rehearing made at a term subsequent to that at which the judgment was entered. But this limitation upon the power of the court will not prevent the correction of the clerical errors or mistakes, or defects of form, or the addition of such clause as may be necessary to carry out the judgment of the court, nor restrain the court from pronouncing null and void a judgment which was rendered in a case not legally before the court.
An application for a rehearing need not be disposed of during the term at which it was made; it may be continued from term to term and be subsequently considered.
The transcript of the record, on appeal, should contain the order of adjournment of the term at which final judgment was rendered, in order that it may appear whether the appeal bond has been filed in time to perfect the appeal; and where it is omitted the regular course would be to move for a certiorari; but where the transcript is filed by the appellee with a motion to affirm without reference to the merits, it is competent to show the fact by the independent certificate of the fact by the clerk of the court below.
Courts, in the construction of their own rules of practice, generally exclude Sunday in the computation of time. But where a statute directs that an act shall be done within a certain number of days, Sunday cannot be excluded, although it should be the last day. Thus where the last day of the twenty days allowed to file an appeal bond fell on a Sunday, and the bond was filed on Monday, the next day, it was not in time.
Where a party, having given notice of appeal, filed an appeal bond which was approved, the appellee having taken up the record and asked an affirmance without reference to the merits: Held, That the appellant was not estopped from showing that the appeal bond was not filed within twenty days after the term.
Appeal from Galveston. The appellee recovered judgment against the appellants at the Spring Term, 1849, of the Galveston District Court.
The defendants below gave notice of appeal, and on the 6th day of August next after the term of the court at which judgment was rendered filed their appeal bond, which was approved by the clerk. After the expiration of thirty days from the commencement of the last term of this court, it being the return term of the appeal, and the appellants having failed to file a copy of the record, the appellee filed the transcript, and obtained an affirmance of judgment without reference to the merits in accordance with the provision of the act of 1848, chap. 76, sec. 4. Subsequently during the term the appellants made their application for a rehearing and to set aside the judgment, and filed, in support of their application, the certificate of the clerk of the District Court and the affidavit of a witness to the fact that that court adjourned its session on the 16th day of July, 1849. This application was continued by order of the court.
After the adjournment of the court the mandate was issued to enforce the judgment of affirmance. And now at this term, the application for a rehearing not having been disposed of, the appellants moved the court to revoke the mandate as having been improvidently issued. The present motion and the application for a rehearing were argued together.
Harris & Pease, for appellants. For the appellants it is contended in support of their motion that this court has no jurisdiction over the case unless it was in such a situation that it might have been tried in this court on the merits if the transcript had been filed in time, for if the appellee could have had the appeal dismissed for want of jurisdiction had the transcript been brought up by the appellants, then he cannot have an affirmance of the judgment. The rules of this court do not require the transcript of the record to state at what time the court below adjourned, and it does not so state, but the affidavit that is filed with the motion proves that the term at which the original judgment was rendered was adjourned on the 16th day of July, 1849. Exclude the day of adjournment from the computation and the twenty days after the term of the court expired at the close of the day on the 5th of August, 1849. The appeal bond in this case was filed on the 6th of August, one day too late. The section before quoted says that the bond shall be filed “““within twenty days after the term.” It would not be contended for one moment that this bond was filed in time if it had not been filed until the 10th of August, and certainly it ought not to make any difference whether it was filed one day too late or five days too late.
It may be contended by the appellee that because the 5th day of August was Sunday the appellants could have filed their bond on the 6th, which was Monday. But the construction that has been given to statutes in similar cases in other States will not sustain this position.
In Massachusetts, where they have a statute that the lien created by an attachment shall continue for thirty days after the rendition of judgment, it has been decided that “when the thirieth day after the rendition of judgment falls on Sunday, the lien on attached property is not therefore extended to Monday.” (15 Mass. R., 225.)
In the same State it has also been decided that “when the time limited for a particular purpose by a statute must necessarily include one or more Sundays, they are to be included in the enumeration, unless expressly excluded, or the intention of the Legislature to exclude them is manifest.” (4 Pick. R., 354.)
On this ground the appeal would have been dismissed by the court upon the motion of the appellee if the transcript had been filed in time by the appellants. This court will not therefore pass over the defect and allow the appellee to have his judgment affirmed without reference to the merits when the appellants could not have had a trial on the merits if the case had been brought here in time by them.Allen & Hale, for appellee.
I. The court of appeals cannot correct its own judgment of a former term. .)
II. The statute requires the clerk to issue the mandate, and the same was issued in conformity with law. (Acts of 1846, p. 253, sec. 13; Acts of 1848, p 73, sec. 2.)
III. The appeal bond was filed within the time prescribed by the statute.
1st. (Harker v. Addis, 4 Burr. R., 515.)
2d. When the 20th day of a rule to plead happens on Sunday, the defendant has the whole of the next day to plead in. And generally the construction of the court, in respect to time for pleading and other matters of practice, is well settled that if the last day fall on Sunday the party has the whole of the next day to perform the act required. .)
3d. When in a statute time is computed from an act done, the first day is excluded. .)
4th. Appellant cannot object to the mode of bringing up his appeal. If an appeal is not brought up in time, an affirmance of judgment cannot be set aside nor cause shown for a new trial. (Anderson v. Anderson, 4 Hay. R., 256; Marr v. Bell, 1 Overt. R. 368; Stuart v. Pasmore, 5 Hay. R., 30.)
4th. The term of the District Court at which the judgment was pronounced was not limited. The transcript does not state the time of adjournment. The appeal bond appears by the transcript to have been filed within the time prescribed by law for the term. The appeal, as appears by the record, was perfected in proper time. The general order of adjournment forms no part of the record of this cause in the District Court. No diminution is suggested.
The court cannot notice the copy of the order filed by the appellants without a palpable violation of a well-established rule, viz:
“The court of appeals in deciding on an appeal are not at liberty to travel out of the record, nor to notice any fact not therein stated.”
This court can acquire jurisdiction of causes only by one of two modes: by appeal or writ of error; and where the former mode is resorted to the jurisdiction of the court can attach only when the appeal is perfected.
To constitute an appeal perfected, the appellant must give notice of appeal during the term, and within twenty days after the term he...
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