Mexican Nat. R. Co. v. Mussette

• Decision Date: 24 May 1894
• Citation: 26 S.W. 1075
• Parties: MEXICAN NAT. R. CO. v. MUSSETTE.
• Court: Texas Supreme Court

26 S.W. 1075

MEXICAN NAT. R. CO. v. MUSSETTE.

Supreme Court of Texas.

May 24, 1894.

Error from court of civil appeals of fourth supreme judicial district.

Action by James Mussette against the Mexican National Railroad Company for personal injuries. A judgment for plaintiff was affirmed by the court of civil appeals (24 S. W. 520), and defendant brings error. Affirmed.

Nicholson, Dodd & Mullalley, and Denman & Franklin, for plaintiff in error. W. Showalter, Herbert Walcott, and Fisher & Townes, for defendant in error.

STAYTON, C. J.

This cause was appealed to the supreme court prior to the organization of courts of civil appeals; and, as was proper at the time, the appeal bond was conditioned as the law then required. On organization of courts of civil appeals, the cause, in accordance with the requirements of the law, was transferred for decision to the court of civil appeals having jurisdiction of cases tried in the county in which it was. The judgment of the district court was affirmed by the proper court of civil appeals, and, on application, this court granted a writ of error, under which the cause is now here. Defendant in error moves to dismiss the writ of error on the ground that the court of civil appeals had not jurisdiction over the cause, because no bond had been executed conditioned as bonds are now required to be to perfect appeals to a court of civil appeals; from which it is argued that this court has not jurisdiction, because a court of civil appeals had not jurisdiction to render a judgment from which writ of error would lie. It is contended that this court ceased to have jurisdiction when courts of civil appeals were organized, and that no court of civil appeals could acquire jurisdiction without a new bond, executed in compliance with the law applicable to bonds given in cases originally appealed to such court; and it is further urged that the bond, executed in accordance with the law in force at the time, became inoperative for any purpose when courts of civil appeals were organized. It is further contended that "the lawmaking power could not change the contract of the sureties to the appeal bond, and impair its obligation, by imposing new burdens, and requiring the sureties to perform the judgment of a tribunal other than the one they agreed to be bound by; [that] sureties have the right to stand upon the very contract they have made, and any change therein made without their consent, and certainly if to their prejudice, will discharge them and destroy the bond as a bond." These propositions are asserted in the motion in many forms.

The appeal bond in question was executed after the amendments to the constitution now in force were declared adopted, but before the organization of courts of civil appeals which were required by that amendment to be organized. At the time the appeal bond in question was executed, the statute required such bonds to be conditioned that principal and sureties, "in case the judgment of the appellate court shall be against him, that he shall perform its sentence, judgment or decree, and pay all such damages as said court may award against him." Rev. St. art. 1404. The bond was conditioned, "in case the judgment of the supreme court shall be against it, * * * it shall perform its judgment, sentence, or decree, and pay such damages as said court may award against it," etc. This bond was sufficient at the time it was given, and, had the cause been reached and disposed of by this court before courts of civil appeals were organized, would have authorized judgment against principal and sureties in accordance with its terms. The amendments to the constitution, among other things, provided that "until the organization of the courts of civil appeals and criminal appeals, as herein provided for, the jurisdiction, power, and organization and location of the supreme court, the court of civil appeals and the commission of appeals shall continue as they were before the adoption of this amendment." Const. art. 5, § 6. After the organization of courts of civil appeals, the jurisdiction theretofore exercised by the supreme court was taken from it, and conferred in substance on these courts. While the amendments to the constitution did not, in terms, direct the causes pending in supreme court to be transferred to courts of civil appeals when organized, such was its effect, for the supreme court from that time was deprived of jurisdiction to decide them, and these courts alone were clothed with that power. So standing the jurisdiction of the courts, the legislature directed that "all causes that may be pending in the supreme court of Texas, when the civil courts of appeals shall have been organized, shall be transferred by said supreme court to the court of civil appeals to which it would be returnable under the law organizing such courts, and shall be decided under the same rule as obtained when any such appeal was perfected. * * * That all bonds and obligations theretofore given in said cause to abide the judgment, sentence, or decree of said court, or to pay the costs of said court, shall be deemed and held to apply to said civil court of appeals as if hereafter given under the provisions of this act." Act April 13, 1892, § 4. In providing for writs of error from this court to a court of civil appeals, the statute declares that "a certified copy of * * * the bond given in the lower court, if any," shall accompany the petition; and that, "if plaintiff in error has given no bond, then the supreme court in granting the writ shall specify what bond shall be given, and the plaintiff in error shall file said bond in the trial court to be approved by the clerk of said court, and a certified copy thereof shall be at once transmitted to the supreme court." This is the only instance in which this court is required to have writ of error bond made. If a party who prosecutes an appeal or writ of error to a court of civil appeals executes bond for that purpose on that bond, he can prosecute writ of error to this court (Rev. St. art. 1011b), and this court can render such a judgment in that case as the court of civil appeals should have rendered, which may go against sureties as well as principal on appeal or writ of error bond.

In view of this legislation, there can be no doubt of intention to give to courts of civil appeals jurisdiction over causes pending in supreme court when those courts were organized, and to authorize them to render judgments on appeal and writ of error bonds filed in those cases to take them to the supreme court as fully as though such bonds were given to perfect appeals or writs of error to those courts. It would be within the power of the legislature to permit appeals and writs of error to be prosecuted to courts of civil appeals, and writs of error to be prosecuted from those courts to the supreme court, without any bonds whatever, and, under existing legislation, it is clear that the court of civil appeals had jurisdiction over this cause, and that this court has; for, if the bond could not be enforced against principal or sureties, the right to have adjudication by both courts without other bond is given by law. To hold otherwise would be, in effect, to hold that litigants have power to deprive the state of power to regulate its judicial system, and to fix the jurisdiction of its courts. Those decisions which deny the liability of sureties on appeal bonds, when, under a change in the law, jurisdiction is given to a court other than that named in the bond, or having jurisdiction when bond was executed, all concede the jurisdiction of the new or substituted court. In re Garesche, 85 Mo. 469; Cranor v. Reardon, 39 Mo. App 306; Schuster v. Weiss (Mo. Sup.) 21 S. W. 438. Some of these cases, however, held that in such cases sureties on appeal bonds are not liable. The decisions are based on the general rule that the contract of a surety is not to be extended by implication beyond its terms, but to construe such obligations in connection with laws in force when they are entered into, and in view of the fact that every person must know that the power of the people to change the jurisdiction of the courts of the state may be exercised at any time, and cannot be controlled by contracts made or obligations assumed by individuals, does not violate that rule. All instruments creating obligations not based on agreement of parties, but upon statutes, such as appeal bonds, are made in view of and in subordination to the fact, known to all, that the people may change the jurisdiction of existing courts, create others, and confer upon them such jurisdiction over cases arising before such legislation, or then pending, as may seem for the best interests of all, and it ought not to be held that principal or surety to an appeal bond contemplated, in event of such change pending appeal, that their obligation should become inoperative; for the substance and spirit of such an undertaking is that the obligors will discharge the obligation fixed by their bond whenever the duty to discharge it, by satisfying the obligation, is declared by a court having jurisdiction over the cause on appeal, whether jurisdiction to determine the cause existed when the bond was given or was afterwards conferred. What court should decide the cause on appeal was not a matter which parties could control by contract, for neither the one nor the other could thus secure a right which would prevent change in jurisdiction of courts, or creation of new courts with jurisdiction before conferred on others. Some of the cases before referred to seem to hold that such obligations as sureties on appeal bonds assume are contracts within the constitutional safeguards which deny to state legislatures power to pass laws whereby the obligation of contracts will be impaired; but, it seems to us, such is not the character of such obligations, for they are not based on consent of adverse litigants, but are assumed by...