Hart v. Mills

• Decision Date: 31 October 1868
• Citation: 31 Tex. 304
• Parties: SIMEON HART v. WILLIAM W. MILLS.
• Court: Texas Supreme Court

31 Tex. 304

SIMEON HART

v.WILLIAM W. MILLS.

Supreme Court of Texas.

October, 1868.

There is a distinction between the right to admit proofs, aliunde, to show that the supreme court has no jurisdiction, and the same character of proof to show that the court below had no jurisdiction.

It has been the settled law of this court, ever since the decision in Harris v. Hopton, 5 Tex. 529, that proof, aliunde, will be heard touching the question of its own jurisdiction. Pas. Dig. art. 1481, note 583. 9 Tex. 294;12 Tex. 99;27 Tex. 6;28 Tex. 732.

Where from an affidavit of counsel and the appearance of the bond found in the record the signatures had been attached after the approval by the clerk, and the amount of the penalty and the condition had been changed, the presumption in favor of the clerk's certificate is removed, and the court being satisfied that the bond found in the record was in fact a blank, the case was dismissed for want of a bond.

The amendment to the district court act of 1858 reads as follows: “No writ of error, to remove a cause from the district to the supreme court, shall in any case issue, unless the plaintiff in error give bond, with sufficient security, for all the costs which may accrue in the supreme court, and which may have accrued in the district court.” Pas. Dig. art. 1517. This section, taken in connection with the act of 13th of May, 1846, requires the bond to be executed within two years after the judgment sought to be revised has been rendered.

The writ of error bond is a condition precedent to be performed by the plaintiff in error, and it is an indispensable authority to the clerk for the issuance of the writ. 23 Tex. 560, 604;25 Tex. 19;ante, 125.

Both the bond and the petition for a writ of error are indispensable, and they must be filed by the clerk of the district court in the county where the judgment was rendered.

Filing a bond in the supreme court would not be a compliance with the law.

ERROR from El Paso. The case was tried before Hon. WILLIAM P. BACON, one of the district judges.

The suit was for false imprisonment. The plaintiff, Mills, alleged that Hart had caused his arrest in El Paso, Mexico, whereby he was brought back to Texas and severely treated. The defendant's counsel filed an affidavit for continuance, but put in no plea, and the defendant, being in default, the plaintiff recovered $50,000 damages. From this judgment Hart prosecuted error. The case having been docketed in the supreme court, George W. Paschal, for Mills, the defendant in error, filed the following motion:

“The defendant, W. W. Mills, by attorney, moves the court to strike this case from the docket, on the ground that before the writ of error issued, and as a necessary requisite thereto, the plaintiff in error should have given bond in the district court of El Paso county, with sufficient security, for all the costs which may accrue in the supreme court and which may have accrued in the district court; but the plaintiff did not give any such bond, or any bond whatever, as by the statute in such case provided, and therefore the court has no jurisdiction of the cause, and the same should be dismissed.

And the defendant says that the pretended bond on page 18 of the transcript is improperly there, and cannot be treated as a bond in accordance with the provisions of the statute, because he says that no such original paper, signed as that is, or by any parties whatever, was ever filed in the district court of El Paso county and a copy transcribed, as the certificate of the clerk would seem to imply. But the bond, as it appears upon its face, must have been filed with the clerk as a mere form, filled up with the sum of ‘one hundred thousand dollars,’ and conditioned as required by the 1495th article of Pas. Dig., but the same was not signed by any person whomsoever.

And afterwards, to wit, on or about the 10th day of September, A. D. 1868, the bond was presented by John Hancock to the counsel of the said Mills, with the original names of ‘John Hancock and Thomas J. Devine’ inserted by said Hancock as securities, with the original signatures as they now appear, thus, in fact, making it to all intents and purposes an original bond. And since that date, and since the said original signatures by Devine and Brewster, the word “thousand' has been erased, so as to make it read ‘one hundred dollars' instead of ‘one hundred thousand dollars;’ and the word ‘damages' has been erased and “costs' inserted, thus, in fact, destroying the legal obligation of the instrument, if any existed, and attempting to make it a bond for costs, under the 1517th article of the law (Pas. Dig.), instead of a supersedeas bond, under the 1495th article.

The defendant says that, under the circumstances the pretended approval and filing by the clerk go for nothing, because it is thus impossible that the original or copy could have been before him.

GEORGE W. PASCHAL,

For Mills.

George W. Paschal, being duly sworn, says that the facts as to the alteration, as stated, are true.

GEORGE W. PASCHAL.

Sworn to before me this 29th day of September, 1868.

GEORGE H. GRAY,

Clerk of Supreme Court.”

The plaintiff in error filed the following affidavit:

“Personally appeared before the undersigned authority, C. S. West, one of the counsel for the plaintiffs in error, who on oath states that in December, 1866, after the supreme court had granted the plaintiff in error leave to withdraw the record then on file, and which record so withdrawn is hereunto attached, marked exhibit B, the counsel, believing that it would be almost impossible to get a correct record, prepared a citation in error and a writ of error bond, and sent the same to the clerk of the district court of El Paso, accompanied with full directions as to the preparation of the record. Since the leave to withdraw, exclusive of the record now on file and submitted to the court, and numbered 3141, plaintiff's counsel have received records marked exhibits C and D; and they state that none of the records, B, C, or D, contain all the proceedings that were had on the trial, and that the record on which the cause is now being tried, being record No. 3141, is the only one that purports to be a perfect record, and that no time has been lost by plaintiff's counsel in procuring the record, and that they have used all the diligence they could, and that the bond which appears in record No. 3141, being the only record that contains a bond, was executed subsequent to the preparing of the exhibits B, C, D, the bond not being then in existence when these records were prepared.

C. S. WEST.

Sworn to and subscribed this 19th day of October, 1868.

GEORGE H. GRAY,

Clerk Supreme Court.”

Geo. W. Paschal, for the motion. I. By the act of 1846 a writ of error could be prosecuted without bond, unless a supersedeas was sought. Pas. Dig. 1495, note 587. But under this act, where the party attempted to give the bond and failed, or gave a void bond, it was held that the court had no jurisdiction, and such cases were dismissed. Johnson v. Robson, 27 Tex. 526, which cited and approved Dial v. Rector, 12 Tex. 99. And it was also held that the bond could not be amended after two years. Were the bond an immaterial thing, the supersedeas might have been disregarded, and the court might have entertained jurisdiction, as in an original case without supersedeas. But not so; the jurisdiction was denied. The objection in this case, as in Dial v. Rector, was, that one of the obligees was dead before the bond was executed; and in both cases affidavits to oust the jurisdiction were heard. 12 Tex. 99.

This question had been fully considered, and the practice of hearing affidavits to defeat the jurisdiction settled, in language of very strong indignation, in the case of Harris v. Hopson, 5 Tex. 529.

II. If the party here sought to give effect to the pretense of the clerk's filing his approval or a certificate of copy, the case would be one of greater aggravation than that of Harris v. Hopson, which received such strong condemnation. The act would be criminal upon the part of the clerk. Crim. Code, art. 347; Pas. Dig. art. 1973.

III. The mischief in the act of 1846 was, that parties could incumber the records of this court with writs of error without security for costs. The remedy is restrictive of that right.

IV. It may be contended that the language “give bond” does not necessarily imply that it should be filed with the district clerk. But in appeals the language is that the party must “enter into bond,” but there is nothing about filing it; yet we have seen that it must be filed in the district court within two years as a condition precedent to the appeal, and it must not be antedated. Waterhouse v. Love, 23 Tex. 560. There, as in this case, the two years had elapsed. And it is to be observed that the language, “no writ of error,” has been held in another section to be a limitation on the right. Waterhouse v. Love, 23 Tex. 560; Hart. Dig. art. 560; Pas. Dig. arts. 1496, 4616, notes 588, 1026.

V. The statute of 1858 relates to judgments of dates anterior to it; it operates upon all suitors except administrators. There is no right to demand the writ of error or the record until the bond is given; and although it need not be filed simultaneously with the petition, it must be filed with the district clerk within the two years. Peabody v. Marks, 25 Tex. 20.

Hancock & West, against the motion. I. This suit is brought to this court by writ of error from the district court of the county of El Paso, to bring under revision a judgment of that court in favor of the defendant in error.

The final judgment in this case was rendered on 12th of September, 1866. On 22d of September, 1866, the plaintiff filed his petition for a writ of error, and on the 24th day of September, 1866, without a bond having been executed by plaintiff in error as required by law, and without the issuance of a citation in error the clerk prepared what h...