Gordon v. Rhodes & Daniels

• Decision Date: 05 October 1907
• Citation: 104 S.W. 786
• Parties: GORDON et al. v. RHODES & DANIELS.
• Court: Texas Court of Appeals

Page 786

104 S.W. 786

GORDON et al. v. RHODES & DANIELS.

Court of Civil Appeals of Texas.

October 5, 1907.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action between J. D. Gordon and others and Rhodes & Daniels. From the judgment rendered, said Gordon and others appeal, and now move for an order requiring the clerk to file the transcript. Motion denied.

Lennox & Lennox, for appellants. McGrady & McMahon, for appellees.

LEVY, J.

This is a motion to file the transcript of the record of the cause, made by the appellants. The case was appealed from a judgment rendered in the district court of Red River county on the 29th day of May, 1907. Notice of appeal to the Court of Civil Appeals for the Fifth supreme judicial district was entered on the same day of the judgment, and an appeal bond was filed and approved on the 9th day of July, 1907. The transcript of the record of the cause was applied for by the appellants, and tendered by them for filing in this court on the 30th day of September, 1907. It is clear that the transcript of the record was taken out and offered for filing and docketing in this appellate court within the 90 days required for filing a transcript in the Court of Civil Appeals. The motion, therefore, can present but the one question of whether the transcript of the record of this cause is returnable for filing in the Court of Civil Appeals for the Sixth district. We are of the opinion that no authority is given for filing the transcript of this appeal in the Court of Civil Appeals of the Sixth district, and that this appeal cannot be prosecuted in this court. The statute, in defining the appellate jurisdiction of the Courts of Civil Appeals, enacted within and by constitutional authority, says: "The appellate jurisdiction of the Courts of Civil Appeals shall extend to civil cases within the limits of their respective districts of which the district courts have original or appellate jurisdiction." Article 996, Sayles' Ann. Civ. St. 1897. This act confines appellate jurisdiction, in the first instance, to the counties within the respective districts of the Courts of Civil Appeals. At the time this cause was tried in the district court of Red River county the judicial system of Texas comprised five Courts of Civil Appeals, each with the same jurisdiction over subject-matter. Red River county at that time was in the Fifth supreme judicial district. The Legislature, at its regular session in 1907, passed an act creating the Sixth supreme judicial district, and placed Red River county in the new district. This act went into effect July 12, 1907. Acts 30th Leg. p. 324, c. 174. There is no provision in this act for the transfer of cases now pending in other appellate courts; nor is anything said in the act either about transferring pending appeals to this court, or denying to or ousting any Court of Civil Appeals of appeals, or pending appeals, from the counties transferred to or from their districts. The act creating the Fourth and Fifth supreme judicial districts specially provided for such transfers. Acts Leg. May 13, 1893, p. 173, c. 116, § 13. In all other acts of the present Legislature changing jurisdiction of courts where it is contemplated that causes then pending should be transferred, it is expressly stipulated that the same shall be done. Acts 30th Leg. pp. 28, 40, 55, 115, 125, 170, 199, cc. 17, 25, 34, 52, 85, 101. In the absence of any express declaration of the Legislature about the transfer, and the act not being broad enough to give it the effect of transferring appeals from other districts, we are compelled to leave pending appeals where the act creating this court, taking effect July 12, 1907, found them. The question presented is a jurisdictional question. And the act should not be given a retroactive effect, because it is not one simply changing procedure. The Courts of Civil Appeals have no inherent power authorizing them to take jurisdiction, but must acquire jurisdiction by operation of law. That the county in which the case is tried and appealed from should be located within and assigned to the particular Court of Civil Appeals at the time the appeal is perfected is an essential to its appellate jurisdiction of the appeal; and when the jurisdiction of the appeal attaches it is there lodged and remains for all purposes, unless transferred from, or taken away, or ousted by operation of law. It follows that the transfer of the particular county from which the appeal is perfected does not affect, transfer, deny, or oust a Court of Civil Appeals of the jurisdiction of an appeal, or its power over the appeal and case to review and determine the same, unless the legislative power has so declared by some declaration to that effect; and any act merely creating a new Court of Civil Appeals and assigning to it territory does not amount in law to that declaration as to transfer of appeals perfected before the act creating the court went into effect and became a law.

The fact that the notice of appeal entered in this record was to the Court of Civil Appeals of the Fifth district is not a significant fact. A transcript of a record of a cause should be filed and docketed in the Court of Civil Appeals in which the appellate jurisdiction of the appeal has attached, and we can find no authority to the contrary. Under the statutes (article 1387, Sayles' Ann. Civ. St. 1897), an appeal is held to have been perfected when taken during the term of the court at which the final judgment in the cause is rendered, and by the giving notice of appeal in open court within 2 days after final judgment, or 2 days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or an affidavit in lieu thereof, within 20 days after the expiration of the term, if the term does not continue more than 8 weeks; but, if the term continues more than 8 weeks, then the bond, or affidavit in lieu thereof, shall be filed within 20 days after notice of the appeal is given. After the appeal is thus perfected, then the trial court loses its power in respect to those things which might trench in the appellate functions, and the jurisdiction of the Court of Civil Appeals attaches. Article 1402,...