Chisholm v. Bewley Mills

• Decision Date: 15 February 1956
• Docket Number: No. A-5509,A-5509
• Citation: 155 Tex. 400,287 S.W.2d 943
• Parties: Cecil J. CHISHOLM, Administrator, Petitioner, v. BEWLEY MILLS, a Corporation, Respondent.
• Court: Texas Supreme Court

Page 943

287 S.W.2d 943

155 Tex. 400

Cecil J. CHISHOLM, Administrator, Petitioner, v. BEWLEY MILLS, a Corporation, Respondent.

No. A-5509.

Supreme Court of Texas.

Feb. 15, 1956.

Rehearing Denied March 28, 1956.

W. L. Eason, Waco, for petitioner.

Street & Street, Waco, for respondent.

WALKER, Justice.

Upon the application of respondent, who asserts a claim against the estate of W. J. Chisholm, deceased, the County Court entered an order directing petitioner, as administrator of the estate, to sell certain real estate to satisfy the claim. Petitioner appealed to the District Court, which also granted respondent's application, and this judgment has been affirmed by the Court of Civil Appeals. 281 S.W.2d 959. Petitioner contends that the claim is invalid because a certified copy of the judgment establishing same was not fild with the County Clerk within thirty days after its rendition as required by art. 3523, Tex.Rev.Civ.Stat.1925. We have concluded that the thirty-day provision of this statute is not mandatory, and that the judgment of the Court of Civil Appeals should be affirmed.

All proceedings in the courts below were completed before the effective date of the Texas Probate Code and are controlled by the statutes as they existed prior to January 1, 1956. Article 3522 authorized the owner of a rejected claim to institute suit for the establishment thereof in a court of competent jurisdiction. Article 3523 then provided that 'No execution shall be issued on a judgment obtained in such suit, but a certified copy of such judgment shall be filed with the county clerk of the county where the estate is pending within thirty days after the rendition of such judgment, and entered upon the claim docket, and shall be classified by the county judge, and have the same force and effect as if the amount thereof had been allowed by the executor or administrator, and approved by the county judge.'

Respondent's claim, which is based on an unsatisfied judgment rendered against the decedent during his lifetime, was duly presented to and rejected by the administrator. Suit on the rejected claim was instituted in district court within ninety days, and on November 19, 1951, the trial court entered judgment establishing the claim. This judgment was affirmed by the Court of Civil Appeals, and the administrator's application for writ of error was refused by this Court. Chisholm v. Mills, Tex.Civ.App., 250 S.W.2d 268. Motion for rehearing on the application for writ of error was overruled on October 29, 1952. The mandate of the Court of Civil Appeals issued on January 15, 1953, and a certified copy of the judgment was filed with the County Clerk on January 27, 1953. The claim was thereafter entered on the Claim Docket and classified by the County Judge. The Court of Civil Appeals concluded that the statutory requirement was satisfied by filing the certified copy within thirty days after the issuance of its mandate in the former action.

Petitioner argues that the thirty-day provision of art. 3523 is mandatory, and that respondent's claim is barred because a certified copy of the judgment was not filed with the County Clerk within thirty days after the judgment was rendered by the trial court, and in any event because the same was not filed within thirty days after the judgment was made final by the overruling of the motion for rehearing on the application for writ of error. No contention is made that anyone has been prejudiced or inconvenienced by the delay in filing the judgment.

Respondent cites Hinton v. Uvalde Paving Co., Tex.Civ.App., 118 S.W.2d 317 (writ ref.), which is similar in many respects to the present case. The administrator there argued that the claim was barred because the judgment establishing same was not filed in the probate court within thirty days after its rendition by the trial court. This contention was overruled upon the theory that the judgment was not final in the sense that it could be certified to and enforced by the probate court so long as an appeal therefrom was pending. So far as we can determine from the application for writ of error in that case, no contention was made that the judgment should have been filed within thirty days after it became final upon disposition of the appeal therefrom, and we do not regard the case as decisive of that question. As we view the present case, however, it is not necessary for us to decide that question or determine whether the reasoning of the Court of Civil Appeals is correct.

There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory. The fundamental rule is to ascertain and give effect to the legislative intent. Although the word 'shall' is generally construed to be mandatory, it may be and frequently is held to be merely directory. In determining whether the Legislature intended the particular provision to be mandatory or merely directory, consideration should be given to the entire act, its nature and object, and the consequences that would follow from each construction. Provisions which are not of the essence of the thing to be done, but which are included for the purpose of promoting the proper, orderly and prompt conduct of business, are not generally regarded as mandatory. If the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereof afterwards or stating the consequences of failure to act within the time specified, may be considered as a circumstance tending to support a directory construction. See Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625; Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808; Sutherland, Statutory Construction, 3rd Ed. 1943, Vol. 3, p. 95, Sec. 5813 et seq.; 82 C.J.S., Statutes, § 376 et seq., p. 869.

Article 3523 does not provide, either expressly or by necessary implication, that the claim will be barred if the judgment is not filed with the county clerk within thirty days. The significance of this circumstance...