Janes v. Adm'rs Reynolds

• Decision Date: 31 December 1847
• Citation: 2 Tex. 250
• Parties: JOSEPH JANES, E. CLAPP AND J. ALLBRIGHT v. THE ADM'RS OF G. W. REYNOLDS
• Court: Texas Supreme Court

2 Tex. 250

JOSEPH JANES, E. CLAPP AND J. ALLBRIGHT

v.THE ADM'RS OF G. W. REYNOLDS

Supreme Court of Texas.

December Term, 1847.

Writ of Error from Houston County.

Summary judgments on bonds, which are declared by statute to have the force and effect of judgments when their conditions have been forfeited, are not in derogation of the right of trial by jury or of any other right secured by the constitution. [10 Tex. 24;14 Tex. 299.]

To authorize a summary judgment against the securities of the principal obligor in such a bond, the bond itself must conform itself in all essential requisites to the statute. [5 Tex. 103;6 Tex. 133.]

If a departure from the conditions of the bond prescribed by the statute makes the obligation less onerous, the bond may be enforced by a summary judgment; but when the conditions of the bond are more onerous than the statute requires, such judgment ought not to be entered against the securities.

A judgment having been rendered in the district court of Harris county against the plaintiff in error, Janes, in favor of the intestate of the defendants, he, Janes, enjoined its execution and gave the other plaintiffs in error, Clapp and Allbright, as his securities in the injunction bond. The injunction being afterwards dissolved, judgment was entered against the principal obligor and his securities in the injunction bond, for the amount of the original debt, costs, etc., and they sued out their writ of error to reverse this judgment. The grounds upon which the reversal was sought are stated in the opinion of the court.

John Taylor, for plaintiffs in error.

J. P. Henderson, for defendants.

Mr. Chief Justice HEMPHILL delivered the opinion of the court.

The question presented by the record is, whether on the dissolution of the injunction the court had lawful authority to render summary judgment against the sureties in the bond on which the writ of injunction was issued, and this involves two considerations:

1st. Whether the court has authority in any case to render judgment without notice to the parties on trial by jury, on bonds declared by statute to have on their forfeiture the force and effect of judgment; and

2d. Whether such judgment should have been rendered on the bond given by the plaintiffs in error, for the purpose of obtaining the injunction.

This judgment was rendered before the organization of the state government, and it is contended that the statutory provision of 1841, authorizing summary judgments on injunction bonds, is void, as being in derogation of the rights secured by the seventh, ninth and eleventh sections of the declaration of rights in the constitution of the republic.

It will not be necessary for the determination of this question to enter into any critical examination of these provisions, or to ascertain with precision the exact scope and meaning, or the extent of the rights thereby secured. For the purposes of this investigation we might admit that the common law of England, instead of the laws of Spain, was the basis of our jurisprudence, and give to the terms the signification in which they are generally understood in the constitutions, charters and statutes of countries or states governed by the common law.

Does the “due course of the law of the land” render unconstitutional all statutes authorizing summary judgments without notice and the intervention of the trial by jury?

The terms “laws of the land” have been often construed, and somewhat variously defined.

When first used in the magna charta of the kings of England, they probably meant the established law of the kingdom, in opposition to the civil or Roman law, which was about being introduced into the land to the exclusion of the former laws of the country.

They are now, in their most usual acceptation, regarded as general public laws, binding all the members of the community under similar circumstances, and not partial or private laws, affecting the rights of private individuals, or classes of individuals. 2 Yerg. 602, 270.

Whatever may be the meaning of the terms “laws of the land,” or “due course of the law of the land,” they have never been held to enjoin in all cases a trial by jury as a requisite indispensable to the validity of a judgment. That a party should have notice and an opportunity of being heard in his defense, and the right of trying disputed facts by a jury, are cardinal principles of the common law; but there are many exceptions in which one or two of these privileges were never enjoined, or may be regarded as renounced by the defendant.

A court does not intervene in the rendition of judgment by default, or on confession of the party, or on demurrer, nor in cases of contempt. Persons accused of high crimes and misdemeanors are, without a jury, imprisoned for safe custody; and under the common law of England, all causes in the courts of equity and admiralty, in courts military and ecclesiastical, are determined without the intervention of a jury.

Under the class of exceptions to the rule in relation to notice, may be ranked cases under the attachment laws and other laws notifying parties by publication, which by legal fiction operates as an actual notice; also summary proceedings against delinquent taxpayers and in confiscations of the property of absentee alien enemies, and in other cases of the like description. 2 McCord, 55; Peck (Tenn.), 448; 1 Haywood, 49.

In many of the states summary judgments are authorized by statutes on bonds given in judicial proceedings; and such laws have not been held to contravene the guarantees of their constitutions. 3 Stewart, 227; Minor (Ala.), 27.

The parties to this bond were cognizant of the statutory provision declaring such bonds on forfeiture to have the force and effect of a judgment, and having virtually renounced their right to notice and trial by jury, and no law or principle prohibiting such renunciation, the summary judgment rendered in the case cannot be impeached for the want of either. The law regards them in effect as having become parties to the record, and that in legal contemplation they are notified of all proceedings subsequent to their execution of the bond. But the obligors in statutory bonds declared by statute to have the force and effect of a judgment are not in point of fact precluded from redress or the benefit of trial by jury.

The 18th section of the statute of limitation, Laws of 1841, p. 168, provides that the obligors in all such bonds shall have one year next after the forfeiture of the same to move to quash the bond, and to have any issues tried by a jury which in a regular action on such bond might properly defeat or modify a recovery thereon against such obligor or obligors.

It is very questionable whether this provision will...