State v. Wagner

• Decision Date: 26 March 1947
• Docket Number: No. 11690.,11690.
• Parties: STATE ex rel CRAWFORD et al. v. WAGNER et al.
• Court: Texas Court of Appeals

203 S.W.2d 795

STATE ex rel CRAWFORD et al. v. WAGNER et al.

No. 11690.

Court of Civil Appeals of Texas. San Antonio.

March 26, 1947.

Rehearing Denied April 23, 1947.

Appeal from District Court, Zavala County; K. K. Woodley, Judge.

Quo warranto proceeding by the State, on the relation of R. S. Crawford and others, against L. Wagner and others. From a judgment denying relators any relief, they appeal, defendants move to dismiss the appeal and relators move for an enlargement of time within which to file the transcript.

Motion for enlargement of time overruled and appeal dismissed.

Black & Stayton, of Austin, G. C. Jackson, of Crystal City, and R. J. Noonan, of Hondo, for appellants.

Ralph W. Yarborough, of Austin, David R. White, of Uvalde, and C. D. Jessup, of Houston, for appellees.

MURRAY, Justice.

This is an attempted appeal from a judgment of the District Court of Zavala County to this Court in a quo warranto proceeding. The suit was brought in the name of the State of Texas on the relation of R. S. Crawford and others against L. Wagner and others, constituting the Board of Trustees of the Southwest Texas Joint County Junior College District, an alleged junior college district.

The trial judge rendered a judgment on October 23, 1946, denying relators any relief. Relators then and there gave notice of appeal and perfected their appeal by filing an appeal bond on November 2, 1946. The transcript was filed in this Court on December 6, 1946, some thirty-three days after relators had perfected their appeal.

Appellees have filed a motion to dismiss the appeal because the transcript herein was not filed within twenty days after perfecting appeal as is required by Rule 384, T. R. C. P., which reads as follows: "Transcripts in appeal from judgments in proceedings in quo warranto shall be filed in the Court of Civil Appeals within twenty days after appeal is perfected."

If this rule is to be given jurisdictional and mandatory effect, then the motion to dismiss is well taken. The language used is mandatory in form and should be so construed unless there is reason for giving it some other effect. There is no stronger mandatory term than the word "shall".

There is no provision in this rule which would permit us to grant an extension of time for any reason upon motion filed within the twenty-day period or at any other time.

Rule 5, T. R. C. P., provides in part as follows: "But it (the appellate court) may not enlarge the period * * * for taking an appeal or writ of error from the trial court to any higher court * * * except as stated in the rules relating thereto."

This is mandatory language and means that the appellate court can not enlarge the period of time for taking an appeal in a quo warranto proceeding, except as stated in Rule 384. There being no provision in Rule 384 for the granting of an enlargement of the period for the taking of an appeal in a quo warranto proceeding, we do not have the power to grant such enlargement.

Rule 5, supra, was taken from Federal Rules of Civil Procedure, rule 6 (b), 28 U. S.C.A. following section 723c. The above construction of Rule 5 is in keeping with the construction placed upon Rule 6 (b) by the Federal Courts. In Leishman v. Associated Wholesale Electric Co., 9 Cir., 128 F.2d 204, 205, the Court said: "The order, however, did not extend the time for taking an appeal and could not have done so; for Rule 6 (b) expressly forbids any such extension."

See also Burke v. Canfield, 72 App.D.C. 127, 11 F.2d 526.

This construction of Rule 5, supra, is further demanded by the provisions of Rule 437, T. R. C. P., which states in part: "The court may make no enlargement of time prohibited by Rule 5."

Appellants contend that inasmuch as Rule 384 was taken from Old Rule 7 for Courts of Civil Appeals, it should be given the same construction as was given to Old Rule 7 before it was brought forward in New Rule 384. Undoubtedly this should be done unless there are compelling and cogent reasons for not doing so. We have concluded there exist compelling and cogent reasons for not giving to New Rule 384 the same meaning theretofore given to Old Rule 7.

Old Rule 7 was adopted by the Supreme Court of Texas October 8, 1892, 84 Tex. Rep. p. 798, 142 S.W. X. Prior to its adoption the Statutes of Texas, Gen.Laws 1879, Special Sess. p. 43, in speaking of proceedings by quo warranto stated: "In cases of appeal in the Supreme Court, to which either party shall be entitled, the said court shall give preference to such case, and hear and determine the same at the earliest day practicable; and all such appeals shall be prosecuted to the term of the court in session, at either branch, or the first term to be held, if not in session, after judgment has been rendered in the district court." This latter provision was held to be mandatory and jurisdictional and that failure to present such appeal to the term of the court then in session or to the first term to be held if the court was not then in session after rendition of judgment in the district court forfeited, or waived, the right of appeal. International & G. N. R. Co. v. State, 75 Tex. 356, 12 S.W. 685; Livingston v. State, 70 Tex. 393, 11 S.W. 115.

After the adoption of Old Rule 7 its terms were held to be mandatory and jurisdictional and that failure to file the transcript in the Court of Civil Appeals within twenty days after the date on which appeal was perfected was fatal to the right of appeal. State ex rel. Cavanaugh et al. v. Nelson et al., Tex.Civ.App., 170 S.W. 814, 816; Bartlett v. State, Tex.Civ.App., 222 S.W. 656.

In 1921 the Legislature adopted what thereafter became Article 6256, R.C.S. 1925, relating to quo warranto proceedings reading as follows: "Every person or corporation who shall be cited as hereinbefore provided shall be entitled to all the rights in the trial and investigation of the matters alleged against him, as in cases of trial of civil cases in this State. Either party may prosecute an appeal or writ of error from any judgment rendered, as in other civil cases and the appellate court shall give preference to such case, and hear and determine the same as early as practicable."

After the adoption of this statute the courts held there was a conflict between Old Rule 7 and the provision of the Statute and, in so far as there was a conflict, the statute would control, and thereafter Old Rule 7 was not regarded as jurisdictional. State v. Scranton Ind. County Line School District, Tex.Com.App., 285 S.W. 601; Orndorff v. State ex rel. McGill, Tex.Civ.App., 108 S.W.2d 206.

It is true that there is obiter dictum in the opinion of the Commission of Appeals in the Scranton case to the effect that Rule 7 was never intended to be mandatory in its nature, this without any discussion of prior decisions holding otherwise, but we can disregard this obiter dictum, as the holdings of the Commission of Appeals were not approved by the Supreme Court. Hager v. Stakes, 116 Tex. 453, 294 S.W. 835; 11 Tex.Jur. 846. The Supreme Court refused an application for a writ of error in the Orndorff case, thereby approving the holding of the Court of Civil Appeals in that case, that the reason Old Rule 7 was not given a mandatory effect was because of the conflict with Art. 6256, supra. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561. A re-examination of the question is a matter for the Supreme Court. Humble Oil & Refining Co. v. State, Tex.Civ.App., 158 S.W.2d 336.

In 1939 the Legislature passed "An Act conferring and relinquishing to the Supreme Court full rule-making power in civil judicial proceedings, repealing all laws and parts of laws governing practice and procedure in civil actions." Gen.Laws, Reg.Sess., 46 Leg.1939, p. 201, Vernon's Ann.Civ.St. art. 1731a. As a result of this act Article 6256, R.C.S.1925, was repealed and its provisions brought forward as New Rule 781, T. R. C. P. A part of the provisions of Old Rule 7 was brought forward as New Rule 384, and thus we now have the duty of construing two court rules which have the effect of statutes, enacted at the same time and in pari materia. It will be presumed that they were actuated by the same policy and imbued with the same spirit, and in construing them they will be read together, each in the light of the others, as though they were embraced in one rule. Garrett v. Mercantile Nat. Bank at Dallas, 140 Tex. 394, 168 S.W.2d 636. When this is done, the composite meaning of the two rules, in so far as they relate to appeal, is that either party in a quo warranto proceeding is entitled to prosecute an appeal as in other civil cases, provided the transcript is filed in the Court of Civil Appeals within twenty days after perfecting the appeal, and that the appellate court shall give preference to such cases and hear and determine them as early as practicable. This gives full meaning to the language contained in each rule and eliminates all apparent conflict between the two articles. It also allows general language to yield to specific language. To give the meaning to Rule 781 contended for by appellants would render the language used in Rule 384 meaningless.

Appellants contend that when the provisions of Art. 6256 were brought forward in the rules without change the Legislature, or rule-making power, likewise adopted the construction which theretofore had been placed upon such language while a part of the statute. Martinez v. State, 134 Tex.Cr.R. 180, 114 S.W.2d 874; 39 Tex.Jur. p. 267. We readily admit this to be the general rule, but where there is impelling and cogent reasons for doing so the courts should not hesitate to place a new construction upon such new enactment. We think that here we have impelling and cogent reasons for placing a new construction upon Rule 781. In Orndorff v. State, Tex.Civ.App., 108 S.W.2d 206, the court had before it the construction of a prior court rule and a recent statute and correctly held that the statute should...