Ramsey v. Gardner

• Citation: 154 Tex. 457,279 S.W.2d 584
• Decision Date: 04 May 1955
• Docket Number: No. 5080,5080
• Parties: Ben RAMSEY, Relator, v. J. Harris GARDNER, District Judge et al., Respondents.
• Court: Supreme Court of Texas

Page 584

279 S.W.2d 584

154 Tex. 457

Ben RAMSEY, Relator, v. J. Harris GARDNER, District Judge et al., Respondents.

No. 5080.

Supreme Court of Texas.

May 4, 1955.

Rehearing Denied June 15, 1955.

Tisinger & Sloan, David L. Tisinger, Looney, Clark & Moorhead, R. Dean Moorhead and Donald S. Thomas, Austin, for relator.

Wm. Yelderman, Austin, for respondent, Johnson.

WALKER, Justice.

This is an original petition for writs of mandamus and prohibition filed by Ben Ramsey, relator, against Honorable J. Harris Gardner, Judge of the 53rd District Court of Travis County, C. T. Johnson, Henry Beck, William Yelderman and Roy Martin, respondents, the last two named being Mr. Johnson's attorneys. The principal question is whether a proceeding to perpetuate testimony under Rule 187, Texas Rules of Civil Procedure, is subject to the mandatory continuance provisions of Art. 2168a, Vernon's Annotated Texas Civil Statutes. We have concluded that it is not.

On December 1, 1954, C. T. Johnson filed the following statement in the 53rd District Court of Travis County:

'C. T. Johnson, Petitioner, shows and represents that he anticipates the institution of a suit in which he may be interested and desires to perpetuate the testimony of Vernon T. Sanford, a witness, who resides in Austin, Travis County, Texas, to be used in such suit; that such could be instituted in the court in which this proceeding is filed; and Ben Ramsey, who resides in San Augustine, San Augustine County, Texas, is supposed by him to be interested adversely to this petitioner.

'That such suit as is anticipated will, if instituted, grow out of campaign expenditures made by the said Ben Ramsey in seeking the Democratic Nomination for the office of Lieutenant Governor of the State of Texas for the period commencing April 1, 1954, and terminating on August 1, 1954, and petitioner anticipates the filing of a suit growing out of unreported campaign expenditures as are required to be reported under the laws of the State of Texas and in particular under those portions of the laws of the State of Texas commonly known as, and referred to as, the Texas Election Code (V.A.T.S.).

'Wherefore, Petitioner prays that the proper writ issue and be, with a copy of this statement, duly served and the deposition of such witness be taken and returned as required by law.'

Relator was served with a copy of the statement and writ on or about December 22, 1954. On January 13, 1955, pursuant to an application by Mr. Johnson therefor, the District Clerk issued a commission to take the deposition of the witness on January 26, 1955, and relator was duly notified on January 14, 1955. The commission was placed in the hands of Henry Beck, a notary public of Travis County, who issued a subpoena duces tecum directing the witness to appear at the time and place set for the deposition and bring with him various records of the Texas Press Association.

The relator thereupon filed the following in the trial court: (1) a verified motion for continuance under Art. 2168a; (2) a motion to quash the citation and commission; and (3) a plea of privilege.

On January 25th Judge Gardner overruled relator's motions, thereby opening the way for taking the deposition the following morning. No ruling was made on the plea of privilege. Relator then presented to this Court his petition for writs of mandamus and prohibition, and we ordered the same filed and stayed the taking of the deposition until this cause could be determined.

Relator is Lieutenant Governor of Texas. The Legislature was in session at the time of the hearing below and has been at all times since, and during that period relator has been and is engaged in the performance of the duties of his office, including presiding over the Senate of Texas. He contends that under the provisions of Art. 2168a he was entitled to have the taking of the deposition continued until at least thirty days after the adjournment of the Legislature.

Article 2168a provides that 'In all suits, either civil or criminal, or in matters of probate, pending in any court of this State at any time within thirty (30) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same * * * the provisions of this Section shall be deemed mandatory and not discretionary.' If a litigant is denied a continuance to which he is entitled under the provisions of this article, his right to relief in an original proceeding in this Court is established by our decision in Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759.

The first act providing for the continuance of a case in which a member of the Legislature is a party or attorney was enacted in 1929. Acts 41st Leg., p. 17, ch. 7. The granting of a continuance under this statute was held to be a matter within the sound discretion of the trial court. Davis v. State, 120 Tex.Cr.R. 330, 49 S.W.2d 805. The Legislature thereafter amended the statute to make its provisions mandatory. Acts 1941, 47th Leg., p. 69, ch. 56. The statute as amended was then superseded, so far as civil actions are concerned, by Rule 254, Texas Rules of Civil Procedure, and for that reason was re-enacted by the Legislature. Acts 1949, 51st Leg., p. 1111, ch. 569.

Art. 2168a expressly applies 'in all suits, either civil or criminal, or in matters of probate.' The same language was used in the earlier acts. The 1929 statute stipulated that 'it shall be sufficient ground for a continuance of such cause', and the later acts require the court to 'continue such cause.' It is apparent, therefore, that neither the 1941 amendment nor the 1949 reenactment was intended to enlarge the scope of the original act.

The continuance of a cause usually means the postponement of the trial of a case. The caption of the 1929 Act reads 'An Act providing for the Continuance of the trial of any civil or criminal action or matter in probate * * *,' and the emergency clause recites that '* * * the trials of such causes necessarily requires such members (of the Legislature) to absent themselves from the meetings of the Senate and House * * *.' A recital similar to the one last quoted also appears in the emergency clause of the 1941 amendment. It is clear to us that the effect of the statute is to require that the trial of an action or matter in probate be continued when the other requirements are satisfied.

A proceeding to perpetuate testimony does not constitute or involve a trial. We are not unmindful of the fact that at common law depositions in aid of a pending or anticipated suit could be and were obtained only by means of a separate suit in the nature of a bill for deposition in a court of equity. During most of the period since Texas became a state, however, our deposition procedure has been regulated by statute. The taking of a deposition to perpetuate testimony in aid of an anticipated suit was authorized by the Legislature in 1848. Gammel, Laws of Texas, Vol. 3, p. 106, sec. 18. As stated by Judge McClendon in Guthrie v. Speck, Tex.Civ.App., 53 S.W.2d 318, 319 (no writ), the statute substituted a simple legal procedure for the more cumbersome and technical bill in equity.

The basic procedure for perpetuating testimony originally adopted by the Legislature in 1848 remains a part of our practice under the provisions of Rule 187. A person who anticipates the institution of a suit in which he may be interested, files with the district clerk of the proper court the statement required by the rule, and a writ accompanied by a copy of the statement is served on the adverse party. The matter then proceeds as in the case of depositions taken in aid of a pending suit. Unlike the equitable suit to perpetuate testimony, there is no requirement of a hearing or order by the trial court prior to the issuance of the commission. The clerk of the court performs only ministerial duties in issuing the notice to the adverse party and the commission to take the deposition. It is our conclusion that the proceeding to perpetuate testimony does not fall within the purview of Art. 2168a.

Relator argues that Art. 2168a is in the public interest, its purpose being to enable members of the Legislature to give their constant and uninterrupted attention to the performance of their official duties, and that the detriment to the public arising from relator's absence from the Senate while the deposition is taken would be the same as that arising from his absence to attend the trial of a case. This may well be true. On the other hand the statute is mandatory, and the intention of the Legislature and the effect of the Act are clearly revealed by its provisions. We would not, therefore, be justified in extending the Act to situations which do not come within its terms.

Respondents contend that relator is not a member of the Legislature within the meaning of Art. 2168a, but it is not necessary for us to decide that question.

Relator also seeks by mandamus to compel Judge Gardner to quash the citation and commission, or in the alternative to transfer the proceedings to San Augustine County. He contends, (1) that the statement filed by Mr. Johnson is deficient in failing to show why the anticipated suit cannot now be filed, in failing to show that the proceeding was filed in good faith and not as a fishing expedition, and in failing to allege facts describing the nature of the proposed suit and the nature and character of the testimony expected to be elicited from the witness; and (2) that the statement fails to allege facts supporting the conclusion that the anticipated suit could properly be filed in Travis County and shows on its face that such suit would necessarily...