Cousins v. Sovereign Camp, W. O. W.

• Decision Date: 19 February 1931
• Docket Number: No. 5678.,5678.
• Citation: 35 S.W.2d 696
• Parties: COUSINS v. SOVEREIGN CAMP, W. O. W.
• Court: Texas Supreme Court

35 S.W.2d 696

COUSINS v. SOVEREIGN CAMP, W. O. W.

No. 5678.

Special Supreme Court of Texas.

February 19, 1931.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by R. H. Cousins against the Sovereign Camp, Woodmen of the World. A judgment for plaintiff was reversed and rendered by the Court of Civil Appeals [26 S.W.(2d) 453], and plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Cofer & Cofer, of Austin, for plaintiff in error.

D. E. Bradshaw, of Omaha, Neb., Black & Graves, of Austin, and Robert M. Turpin, of Tulsa, Okl., for defendant in error.

Argued before BRADLEY, Special C. J., and SANFORD and HENDERSON, Special JJ.

PER CURIAM.

Plaintiff in error instituted this suit in the district court of Travis county against the Sovereign Camp, Woodmen of the World, wherein he sought and recovered a judgment from which the Sovereign Camp appealed to the Court of Civil Appeals. That court reversed the judgment of the trial court and rendered judgment for the Sovereign Camp; and to the latter judgment this court granted a writ of error.

A full and correct statement of the case appears in the opinion of the Court of Civil Appeals, by Special Chief Justice Abney, in 26 S.W.(2d) 453.

The writ of error was granted because this court was of opinion the issue herein discussed is of sufficient importance to the jurisprudence of the state to justify its consideration here.

The issue is whether a foreign corporation having an agent and doing business in one of the counties of this state, in which it is sued, resides in such county within the meaning of article 2253, Rev. St. 1925, as amended by Acts 1927, c. 15, § 1 (Vernon's Ann. Civ. St. art. 2253), and is required to file its appeal bond within twenty days after notice of appeal is given, or whether it is allowed thirty days to file its appeal bond, where the term of court may by law continue more than eight weeks.

Article 2253, so far as it applies to the issue here under consideration, is as follows:

"If the term of court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after 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."

The term of the trial court at which the judgment was rendered was one which, by law, might continue more than eight weeks (R. S. art. 199, subd. 53); and the defendant in error is a foreign corporation, organized under the laws of the state of Nebraska, has a permit to do business in the state of Texas, has appointed the commissioner of insurance its attorney upon whom service may be had as provided by article 4843, and has a local camp in Travis county, in which county the judgment was rendered. The appeal bond was filed more than twenty, and less than thirty, days after notice of appeal was given.

Plaintiff in error contends that this court is without jurisdiction, except to reverse the judgment of the Court of Civil Appeals and direct the enforcement of the judgment of the trial court, basing his contention upon the argument that under the provisions of the statute, defendant in error resides in Travis county, and thus had only twenty days in which to file its appeal bond; and having failed to do so, did not seasonably prosecute its appeal. The issue, then, is whether defendant in error resides in Travis county, within the meaning of the statute.

In the inception of this suit, plaintiff in error alleged that defendant "is a fraternal beneficiary association, duly incorporated under the laws of the State of Nebraska, and has its principal office in the City of Omaha, Nebraska," and defendant in error has been referred to and treated as a foreign corporation. No contention is made that it was domiciled elsewhere than in the city of Omaha, but plaintiff in error now bases his contention upon the meaning of the word "resides," in the statute.

The cardinal principle of statutory construction is to ascertain the legislative intent from the statute. Koy v. Schneider, 110 Tex. 369, 218 S. W. 479, 221 S. W. 880, and authorities there cited. To that end all available sources may be consulted. Among such sources are the contemporary history of the state, the circumstances of business usage, and the life and habits of the people at the time of the passage of the act.

In the case of Higgins v. Rinker, 47 Tex. 393, the Supreme Court, speaking through Chief Justice Roberts, says:

"The law should be construed in reference to the habits of business prevalent in the country at the time it was enacted. The law was not made to create or shape the habits of business, but to regulate them, as then known to exist."

And in ex parte Roquemore, 60 Tex. Cr. R. 282, 131 S. W. page 1101, 1104, 32 L. R. A. (N. S.) 1186, the Court of Criminal Appeals, in an admirable opinion by Judge Ramsey, later of this court, states the rule thus:

"In undertaking to fix and place meaning upon statutes, we should do so in the light of contemporaneous history, and in reference to the habits and activities of our people."

This statute was passed as part of one of the early practice acts of the state, and has been brought down in almost identical language since 1883. It is obvious that the Legislature, in passing the act under the conditions existing in 1883, intended to give a defeated litigant who did not live in the county of the forum a sufficient length of time to go to his home and secure the execution of an appeal bond with sureties and return to the forum and file it. Travel was tedious in those days, and the Legislature allowed what it considered a sufficient length of time for the appellant to travel to his home and return before the door of appeal should be closed to him. Hence, an appellant residing out of the county was allowed thirty days in which to file his bond, instead of the twenty days allowed to one residing in the county.

Furthermore, the Legislature must have intended the extension of time for the benefit of persons charged with the burden of determining and perfecting appeals, who resided at the greater distance from the seat of litigation. There is no apparent reason for this extension of time if it was intended to apply the shorter time to parties at great distance from the court merely because they may have had business agents on the ground. It was more reasonable to make the test depend upon the location of the party who controlled the whole scheme of the litigation, which, in this case, is the corporation itself, at its domicile in another state.

Another rule of construction is that a remedial statute must be construed liberally, to effectuate the purpose of its enactment. In the early case of Shelton v. Wade, 4 Tex. 148, 51 Am. Dec. 722, Justice Wheeler had before him the question of the sufficiency of...