Walker v. Lyles

• Decision Date: 19 December 1931
• Docket Number: No. 4176.,4176.
• Citation: 45 S.W.2d 315
• Parties: WALKER et al. v. LYLES et al.
• Court: Texas Court of Appeals

45 S.W.2d 315

WALKER et al. v. LYLES et al.

No. 4176.

Court of Civil Appeals of Texas. Texarkana.

December 19, 1931.

Rehearing Denied January 14, 1932.

Appeal from District Court, Rusk County; R. T. Brown, Judge.

Suit by A. L. Walker and others against George W. Lyles and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

The appellees filed a motion in this court on November 18, 1931, to strike out the transcript and statement of facts, and also filed on November 18, 1931, a motion for affirmance of the judgment on certificate. It appears that the suit was brought in the district court by the appellants against the appellees. There was a trial on the merits before the court on July 15, 1931, and a judgment was rendered in favor of the appellees. and that appellants take nothing by their suit. The appellants promptly gave notice of appeal, and they timely filed their appeal bond on August 4, 1931. No motion for new trial was filed. The transcript and statement of facts on appeal were filed by the appellants with the clerk of the Court of Civil Appeals on October 23, 1931. The time within which the appellant or plaintiff in error must file the transcript with the clerk of the Court of Civil Appeals under article 1839, R. S., the existing law at the time the appeal bond was filed, was "within ninety days from the perfection of the appeal or service of the writ of error." By the further terms of the act, the court was authorized, for good cause shown, to "permit the transcript to be thereafter filed upon such terms as it may prescribe." At its 1931 regular session, however, the Legislature passed an act amending article 1839 (Acts 42nd Leg. c. 66 [Vernon's Ann. Civ. St. art. 1839]). The change made by that act was that the appellant or plaintiff in error "shall file the transcript with the Clerk of the Court of Civil Appeals within sixty days from the final Judgment or Order overruling motion for new trial, or perfection of the Writ of Error." The amending act further contained the following change: "Provided, that for good cause shown before the expiration of such sixty day period, the Court shall permit the transcript to be thereafter filed upon such terms as it shall prescribe." The new act took effect August 22, 1931, which was ninety days after the adjournment of the Legislature on May 23, 1931, and in express terms repealed "All laws and parts of laws in conflict herewith." The amending act does not expressly declare that it is to take effect at a fixed future date, nor does it contain a saving clause as to actions then pending or provisions indicating the purpose and intention of giving it a retrospective operation. The amended act relating to filing of statement of facts on appeal is likewise situated. Acts of 1931, c. 66, page 100 (Vernon's Ann. Civ. St. art. 1839).

Barkley & Webb, of Houston, and Joseph H. Byers, of Henderson, for appellants.

Cecil L. Simpson and Monta R. Ferguson, both of Dallas, R. E. Seagler, of Houston, and C. F. Richards, of Lockhart, for appellees.

LEVY, J. (after stating the case as above).

The new act of 1931 in nowise undertakes, as is apparent from its terms, to change or modify the time allowed for taking or perfecting appeal or writ of error. The separate and distinct articles bearing upon the prosecution of appeal remain as they were and unchanged. Article 2253 (as amended by Acts 40th Leg. c. 15 [Vernon's Ann. Civ. St. art. 2253]), and arts. 2255, 2092, § 31, Rev. St. And neither can the new act be regarded as in the nature of legislation taking away certain grounds of appeal, as, for instance, in Cotton Ass'n v. Lennox (Tex. Civ. App.) 296 S. W. 325. For the amended act and its purpose relate to matters purely of legal procedure, of the time for the filing of the transcript of the record of the cause as certified to the appellate court. A transcript is but a certified copy of the proceedings had in the trial court. Article 2278; Escavaille v. Stephens, 102 Tex. 514, 119 S. W. 842. And the filing of a transcript in the appellate court is merely a step in the prosecution of the appeal after the appeal is taken and perfected. 3 Tex. Jur. § 488. Therefore questions respecting the jurisdiction of the courts to hear an appeal or rights of parties to have an appeal or of vested rights of parties are matters entirely apart from the present question involving only procedure. The new act being one purely of regulation of procedure on appeal, as within the power of the Legislature to enact (36 Cyc. p. 1213, par. 2), the decision of the present motion must depend solely upon whether or not the new act has application to cases pending at the time it took effect. For, as admittedly appears, if the new act does not have application, then the filing of the record in this appeal has not overrun the ninety days allowable by the act before its amendment to file same with the clerk of this court. As will be observed, the new act expressly repeals "all laws and parts of laws in conflict herewith," and has no saving clause as to actions or appeals then pending, nor any provisions which are ordinarily considered (36 Cyc. p. 1204b) as indicating the purpose and intention of declaring that it is not retrospective. The rule of construction generally applied is that an act dealing with matters classed as procedure only applies, unless the contrary intention is expressed, to all actions and proceedings falling within its terms, whether commenced before or after its passage. The following citations support the rule: 1 Lewis' Sutherland Stat. Con. (2d Ed.) § 285; 36 Cyc. p. 1228g; Cooley on Con. Lim. (7th Ed.) p. 528; 3 Tex. Jur. § 516; 25 R. C. L. § 24, p. 778; Elliott v. Ferguson, 100 Tex. 418, 100 S. W. 911; Pierce v. Watkins, 114 Tex. 153, 263 S. W. 905; Plummer v. Van Arsdell, 117 Tex. 200, 299 S. W. 869; De Cordova v. City of Galveston, 4 Tex. 470: Odum v. Garner, 86 Tex. 374, 25 S. W. 18: Garce v. Buffington (Tex. Civ. App.) 25 S. W. 317; Rwy. v. Pruter (Tex. Civ. App.) 220 S. W. 797; Rwy. v. Carter (Tex. Civ. App.) 225 S. W. 592; Zarate v. Cantu (Tex. Civ. App.) 225 S. W. 285; Karczmarzyk v. Kerr (Tex. Civ. App.) 3 S.W.(2d) 928. Legislation of this character, however, which changes or affects remedies of causes then pending, has the limitation imposed upon it, as operating upon its validity, that its terms must not either work a denial altogether of any remedy, or of denial of a reasonable time for the prosecution of the rights before the bar takes place. Cooley on Con. Lim. (7th Ed.) "Change of Remedies," p. 406; 25 R. C. L. § 27, p. 80; Odum v. Garner, 86 Tex. 374, 25 S. W. 18, 19; De Cordova v. City of Galveston, 4 Tex. 470; State v. Wygall, 46 Tex. 447; Grigsby v. Peak, 57 Tex. 142, and other cases. Yet the present act by a fair construction of its terms may not be held subject to either one of such objections. The general language of the new act is broad enough to give the right to file the transcript after appeal as well to pending causes or appeals as to prospective causes or appeals. The right to file the transcript in all cases remained in force under the new act the same as under the old law, with only a change in the time required to do so. One period of time was merely substituted for another. And the general provisions of the act and the time the statute became operative affords, as contemplated it should, a reasonable time for the assertion and prosecution of all pending rights before the bar takes place. The new act did not in fact become effective at once upon its passage, but ninety days after the date of the adjournment of the Legislature. Further, the proviso of the act expressly extends and allows to the appellant, in pending causes and appeals as well as in prospective causes and appeals, the right to have extension of the time, in avoidance of the bar, upon "good cause shown before the expiration of such sixty day period." There is then neither denial altogether of any remedy nor denial of a reasonable time for assertion and prosecution of rights before the bar takes place.

In the case of Odum v. Garner, supra, there was considered by the Supreme Court a new statute lessening the time allowable for suing out a writ of error. The questions before the court were, whether or not the suing out of the writ was governed (1) by the old law, or (2) by the new law after allowing "the rule made in Gautier v. Franklin, 1 Tex. 732." The Supreme Court, after discussing the provisions of the new law, observed, viz.: "The general rule as to st...