Kleiber v. McManus

• Decision Date: 23 March 1886
• Citation: 17 S.W. 249
• Parties: KLEIBER <I>et al.</I> v. McMANUS.<SMALL><SUP>2</SUP></SMALL>
• Court: Texas Supreme Court

17 S.W. 249

KLEIBER et al. v. McMANUS.²

Supreme Court of Texas.

March 23, 1886.

Application for mandamus.

Action by Emma Kleiber against Charles McManus and Frances E. McManus. The motion of Charles McManus to remove the case from the district court of Cameron county to the circuit court of the United States was granted. From an order of the latter court, remanding the case, no appeal was taken. The motion to proceed with the trial was refused on the ground that by the order of removal the court had lost jurisdiction, and had not reacquired it. On appeal a petition was made for a writ of mandamus to compel the district judge to proceed, and a transcript of the entire record was made an exhibit thereto. Application granted.

Waul & Walker, for petitioners. M. E. Kleberg, for respondent.

ROBERTSON, J.

The case presented in the application for mandamus, not controverted, is one in which the jurisdiction of the district court has been undoubtedly restored to it. If the order of removal was properly granted, the refusal of the federal court to receive the case, or its order remanding it, acquiesced in by the parties, reinvested the district court with its power to proceed with the suit, as if its jurisdiction had never been interrupted. Thacher v. McWilliams, 47 Ga. 306; Insurance Co. v. Francis, 52 Miss. 457. It was the right and duty of the district court to proceed to final judgment. That the order refusing to proceed is not a final judgment is the necessary result of the decision of this court in the case of Durham v. Insurance Co., 46 Tex. 182. In that case the order of removal was held not to be a final judgment. That order implied a refusal of the district court to proceed further in the case. Here the refusal is expressed. The constitution, in defining the jurisdiction of the supreme court, provides that "appeals may be allowed from interlocutory judgments of the district courts, in such cases and under such regulations as may be provided by law."¹ The power of the legislature to authorize an appeal in this case is thus distinctly given. The broad and frequented avenues to this court, known of all men, are writ of error and appeal. But there is nothing in the organic law limiting to these two the ways to which the appellate jurisdiction of this court may be reached. Whatever puts the supreme court in possession of the case, and authorizes it to revise the order complained of, and to direct what shall be done to correct the error found, puts in operation the appellate jurisdiction with respect to that order. As to interlocutory orders, there is no absolute right of appeal. The cases in which the appeal shall be allowed, and how the right of appeal in these cases shall be exercised, — the procedure, — are to be prescribed by the legislature. The appeal may be allowed without requiring the appellant to give notice of appeal, or to give a bond, or to obtain and file a transcript. These are usual statutory incidents of appeal; they are not organic requirements, and may be dispensed with by the legislature.

The question here is, has the legislature authorized an appeal from an interlocutory order of the district court, refusing to proceed with a case, and prescribed how the appeal shall be taken? The only law bearing upon the question is article 1016, Rev. St., which enacts that "the said court, [meaning the supreme court,] or any judge thereof in vacation, may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause, agreeably to the principles and usages of law, returnable to the supreme court on or before the first day of the term, or during the session of the same, or before any judge of said court, as the nature of the case may require." The appellate power is vested by the constitution² in the supreme court, and not in the several judges. The attempt in the last two clauses of the article to confer this power upon "any judge of the said court" will not defeat the purpose of the legislature to confer warranted jurisdiction upon the court, if that purpose is declared in other parts of the statute. We may, therefore, discard the two last clauses in determining the effect of the statute; what is left is complete without them. On this principle, the act of May 10, 1840, (Pasch. Dig. art. 469 et seq.,) was given effect by ignoring the void features. Thomas v. State, 9 Tex. 333; Miller v. Holtz, 23 Tex. 141. This article contemplates a revision of the action of the district court refusing to proceed with a cause, and a correction of the error by a writ of mandamus if the action of the district court is found to be erroneous. The writ does not issue until the court has exercised jurisdiction of the cause, has heard and determined the matter in issue. The mandamus then issues to enforce the judgment. We have no difficulty whatever in determining that this writ may be used to enforce the judgments of this court. The constitution expressly authorizes its issue to enforce the jurisdiction of the court. This point was fully considered and determined in the case of Wells v. Littlefield, 62 Tex. 28. It was there held, however, that this writ could issue from this court only in cases in which the jurisdiction has attached. The writ is not the means of acquiring jurisdiction, but of executing the sentence of the supreme court in a case in which the supreme court has already acquired and exercised its appellate power. This statute does not contemplate the issue of the writ until it has been determined that the court below has improperly refused to proceed. This is legitimate and constitutional.

The real question recurs, has the legislature, in this act, exercised its constitutional right to allow an appeal from...