Rogers v. Watrous

Decision Date01 January 1852
PartiesROGERS v. WATROUS.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

The law does not favor repeals by implication. But a subsequent statute revising the subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former to the extent to which its provisions are revised and supplied. (Note 15.)

So, though a subsequent statute be not repugnant in its provisions to a former one, yet if it was clearly intended to prescribe the only rules which should govern, it repeals the prior statute.

The act of 1843, (Hart. Dig., art. 637,) providing for a change of venue in cases where the judge was interested, was supplied and repealed by the act of 1846. (Hart. Dig., arts. 653, 654, 655.)

It is true that the District Court cannot, in general, revise its own judgments of a former term; but where an interlocutory order has been inadvertently and erroneously made, which, after judgment on appeal, may occasion a reversal of the judgment, there can be no reason why the District Court should not, before final judgment, correct such erroneous order, if susceptible of being corrected without prejudice to the rights of parties.

Where a change of venue is ordered in a case not authorized by law, the court to which the transfer is ordered may direct the case to be retransferred.

Where the defendant procured a change of venue on the ground that the judge was interested, and the case was, on motion of the plaintiff, stricken from the docket by the court to which the change of venue had been ordered, on error by the defendant the court remanded the case to the original court at the costs of the plaintiff in error.

Error from Galveston. The defendant in error filed his petition in the District Court of Harris county on the 30th day of August, 1848, to enjoin the collection of a judgment recovered against him by the plaintiff in error in that court.

At the Fall Term, 1850, on motion of the attorney for the defendant in the injunction suggesting that the judge of that district was interested, having been of counsel in the cause, the court awarded a change of venue to the county of Galveston; and the case was accordingly transferred to and placed upon the docket of the court in the latter county. But on motion of the plaintiff it was stricken from the docket on the ground of a want of jurisdiction.

The defendant brought a writ of error.

Alexander & Atchison, for plaintiff in error.

The District Court of Galveston county erred in striking the cause from the docket. The venue was properly and legally changed. Section 14 of art. IV of the Constitution of the State of Texas does not affect the subject of change of venue. That subject is disposed of by section 14, article VII, and by articles 653, 636 and 637 of Hartley's Digest. Articles 636 and 637 were the only laws to which art. 653 could be applicable at the time that it was enacted; they were “the rules and regulations prescribed by law” referred to.

This position is sustained by section 3 of the schedule (art. XIII) of the Constitution of the State, which was a contemporaneous provision against implied repeals.

At all events no objection was made to the change of venue in the court where it was obtained.

The causes of a motion under art. 637, as they would lie within the personal knowledge of the judge, need not have been spread upon the record. There is always a legal intendment or presumption that a judicial officer acts upon a proper showing and that his orders are properly made, until the contrary is made to appear. (Dallam's Dig., 494; 2 Tex. R., 594; 3 Id., 305, and the cases cited.)

R. Hughes, for defendant in error.

The Constitution prohibits the judge sitting in a case in which he is interested, and because he cannot sit he cannot hear a motion or make an order.

The new Constitution directed the Legislature to provide for changes of venue in civil and criminal cases, which was done. (Hart. Dig., arts. 653, 654.)

But to show that the general provision made was not intended to embrace the cases when the judge was interested, or of counsel, immediately a provision is made providing for those cases, which provides a mode of trial, not a change of venue. (Hart. Dig., art. 655.)

The convention knew that laws were then in force by virtue of which changes of venue could be had even in the case when the judge was interested or of counsel, and they knew that those laws would continue in force unless repealed; but because there was a provision in the Constitution which came in conflict with one of those cases it was, in effect, directed that the laws on the subject should be revised. That revision took place and the provision as to changes on account of the interest of the judge was omitted. This was a constructive repeal.

(Goodenor v. Buttrick, 7 Mass. R., 140;Barttell v. King, 12 Id., 537, 545; Ashby, appellant, 4 Pick. R., 21, 23; Commonwealth v. Cooley, 10 Id., p. 39; Ellis v. Paige, 1 Id., 43, 45; Rutland v. Mendon, 1 Id., 154; Blackton v. Walpole, 9 Id., 97.)

WHEELER, J.

The change of venue was awarded under the provision of an act of the Congress of the Republic, passed in 1843, (Hart. Dig., art. 637,) which provides “that hereafter it shall be the duty of any one of the district judges of the Republic of Texas to change the venue upon the motion of any practicing attorney, in any case in which said judge may be interested, from the county in which he may be presiding to the nearest adjoining county out of his district.”

Was this statute in force at the time of the awarding of the change of venue?

The Constitution of the State (art. 7, sec. 14) directs that ...

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    ...or substitute of the first, it will repeal the first to the extent in which its provisions are revised and substituted. Rogers v. Watrous, 8 Tex. 62, 58 Am. Dec. 100; Daviess v. Fairbairn, 3 HOW 636, 11 L. Ed. 760; Sullivan v. People, 15 Ill. 233; Leighton v. Walker, 9 H. H. 59; Dexter & Li......
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    • 1 Enero 1873
    ......        Affirmed.         Motion for rehearing overruled. -------- Notes:          1 .Rogers...        Affirmed.         Motion for rehearing overruled. -------- Notes:          1 .Rogers v. Watrous......
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