Kuehn v. Neugebauer

• Decision Date: 15 October 1919
• Docket Number: (No. 5920.)
• Citation: 216 S.W. 259
• Parties: KUEHN v. NEUGEBAUER.
• Court: Texas Court of Appeals

216 S.W. 259

KUEHN v.NEUGEBAUER.

(No. 5920.)

Court of Civil Appeals of Texas. Austin.

October 15, 1919.

Rehearing Denied November 26, 1919.

Appeal from District Court, Hays County; Frank S. Roberts, Judge.

Suit by Joseph Neugebauer against Gus Kuehn.Judgment for plaintiff was reversed and remanded, and plaintiff moves the court to instruct the clerk to issue the mandate; the clerk having refused upon the ground that costs had not been paid within one year.Motion granted.

John P. Pfeiffer, of San Antonio, for the motion.

Will G. Barber, of San Marcos, opposed.

BRADY, J.

On April 25, 1918, this cause was reversed and was remanded to the district court of Hays county for a new trial.204 S. W. 369.No motion for rehearing was ever filed.A few days prior to August 30, 1919, the appellee paid the costs of the appeal, and requested the clerk of this court to issue a mandate to the trial court, in order that he might proceed with the prosecution of the cause, which request was refused by the clerk, upon the ground that the costs had not been paid within one year from the date of the judgment of this court, as required by article 1559, Revised Statutes.

The appellee has filed a motion requesting this court to instruct the clerk to issue the mandate, and has invoked the provisions and benefits of the "Soldiers' and Sailors' Civil Relief Act"(ActMarch 8, 1918, c. 20, title 16a, Compiled Statutes of the United States, articles 1 and 2, sections 3078¼a to 3078¼e, inclusive).In his sworn application, appellee shows that on May 13, 1918, he enlisted in the army of the United States to assist in the prosecution of the war against Germany, without having been apprised of the action of this court in this cause; that his military service began May 13, 1918, and ended July 26, 1919, during the greater part of which time he served overseas; that during the entire time of his service he gave his undivided time and attention to the service of his country, aiding and assisting in the prosecution of the war against Germany, and that he had neither time nor opportunity to attend to his personal affairs; that he did not pay the costs of the appeal because of his military service, but that as soon as he reasonably could, and within 30 days after his discharge, he paid the costs and requested the issuance of a mandate.To the application is attached appellee's honorable discharge from the United States army, which verifies his averments as to military service.

Appellant resists the motion and demurs to it, and specially excepts because the federal statutes invoked are inapplicable, and further because article 1559, Revised Statutes of Texas, is mandatory, and leaves this court without discretion to order the issuance of a mandate.There is a general denial of the facts alleged in the motion, and a special reply to the effect that appellee had both actual and constructive notice of the judgment of this court prior to his enlistment in the army, and in ample time for him to have paid the costs and taken out the mandate prior to his military service; further, that before his enlistment appellee had determined to abandon the prosecution of this suit, and that his failure to pay the costs accrued in this court did not result from his enlistment in the army.Appellant has introduced proof and filed an affidavit in support of his defenses to the motion.

The questions presented by this motion are both novel and important, and it is deemed advisable to, as briefly as may be, indicate our views in writing.No authorities have been cited construing the act of Congress involved, and, as far as we are aware, there are no precedents upon the exact questions arising here.Article 1559, Revised Statutes of Texas, is as follows:

"In cases which are, by the Supreme Court, or Courts of Civil Appeals, reversed and remanded, no mandate shall be taken out of either of said courts and filed in the court wherein said cause originated, unless such mandate shall be so taken out within the period of twelve months after the rendition of final judgment of the Supreme Court, or Court of Civil Appeals, or the overruling of a motion for rehearing.And if any cause is reversed and remanded by the Supreme Court, or Court of Civil Appeals, and if the mandate is not taken out within twelve months as hereinbefore provided, then, upon the filing in the court below of a certificate of the clerk of the Supreme Court, or Court of Civil Appeals, that no mandate has been taken out, the case shall be dismissed from the docket of said lower court."

This statute may be assumed to be mandatory, as has been held in the following cases: Pevito v. Southern Co., 187 S. W. 1009;Watson v. Boswell, 73 S. W. 985;Watson v. Mirike, 73 S. W. 986;Scales v. Marshall, 96 Tex. 140, 70 S. W. 945.Upon this assumption the question then arises whether the federal act is applicable, and, if so, whether it requires or confers upon us the discretion to order the issuance of a mandate under the facts and circumstances of this case.The only portions of the Soldiers' and Sailors' Civil Relief Act which may reasonably be claimed to apply to this case are found in articles 1 and 2.Section 3078¼a, article 1, may be said to be merely a preamble, setting forth the purposes and objects of the legislation; but its provisions are important as indicating the intent of Congress and the scope of the enacting clauses which follow.The objects of the act are broadly stated to be the...