19 S.W.2d 190 | Tex. App. | 1929
It is insisted by appellants that the court erred in not allowing them to file a new bond in lieu of the defective appeal bond, because (1) the statutory provision allowing appellants to amend defective bonds in appeal of civil cases by filing a new bond is an existing provision of law, and was not repealed in the revision of the laws in 1925; and (2) article 1840, R.S., applies to cases appealed from the justice courts to county courts, as well as cases appealed from county and district courts to the Courts of Civil Appeals.
Prior to 1905 there was no warrant of law for amending bonds in civil cases defective in substance in appeals from the justice courts to the county courts after the time had elapsed for perfecting an appeal. Houston T. C. R. Co. v. Red Cross Stock Farm (Tex.Civ.App.)
"Sec. 1. When an appeal has been or shall be taken from the judgment of any of the courts of this state by filing a bond or entering into a recognizance within the time prescribed by law, in such cases and it shall be determined by the court to which appeal is taken that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond on such terms as the court may prescribe.
"Sec. 2. The fact that appeals from justice courts to county courts and from county and districts courts to the court of criminal appeals are frequently dismissed on account of defective bonds and recognizances, whereby the right of appeal is, in many cases, unjustly denied, creates an emergency," etc.
The caption of the law reads: "An Act to regulate appeals in the courts of the State of Texas."
In virtue of the general language of the act, it is not certain that the Legislature intended to specially deal with appeals in criminal cases. It is of doubtful meaning and susceptible upon its face of the two constructions, either that it was intended to apply strictly to appeals in criminal cases, or that it was to apply to both criminal and civil cases. At least the courts treated the act, standing as the original act, of doubtful import, and construed it as intended to apply to both civil and criminal cases in appeals from the justice courts to the county courts. Oliver v. Ass'n (Tex.Civ.App.)
"An Act to adopt and establish a `Penal Code' and a `Code of Criminal Procedure' for the State of Texas.
"Be it enacted by the Legislature of the State of Texas:
"Section 1. The following titles, chapters and articles are hereby adopted and shall hereafter constitute and be known as the Penal Code of the State of Texas: (Here follows enumeration of different titles, chapters and articles applicable only to crimes.)
"Sec. 2. Be it further enacted that the following titles, chapters and articles shall hereafter constitute the Code of Criminal Procedure, to-wit: (Here follows enumeration of the different titles, chapters and articles relating to "rules applicable to the prevention and prosecution of offenses against the laws of this state.")
In the "general repealing clause" in "Section 1" it is provided: "All laws and parts of laws relating to crime omitted from this Act have been intentionally omitted, and all additions have been intentionally added, and this Act shall be construed to be an independent Act of the Legislature enacted under the caption hereof, and the articles contained in this Act, as revised, rewritten, changed, combined and codified shall not be construed as a continuation of former laws, except as otherwise herein provided."
In respect to the Civil Code the act recited:
"An Act to adopt and establish the `Revised Civil Statutes' of the State of Texas.
"Whereas it is expedient that the general civil statutes shall be arranged in appropriate titles, chapters and articles, and that the whole should, as far as practicable, be made concise, clear and consistent; therefore,
"Section 1. Be it enacted by the Legislature of the State of Texas: That the following titles, chapters, subdivisions and articles shall hereafter constitute the `Revised Civil Statutes' of the State of Texas."
In the "final title" of the particular act it is provided:
"Be it further enacted:
"Section 2. That all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not hereby expressly continued in force, are hereby repealed."
"Section 22. That these Revised Statutes when adopted shall be construed to be an Act of the Legislature."
A comparison of the two separate acts clearly shows the intention to embody in a separate Code, primarily to be interpreted in and by itself alone, the particular branches of the laws, and to be treated in that fashion. In that view article 835 of the Code of Criminal Procedure in the Revision of 1925, formerly article 923 of the revision of 1911, would be, as declared in the "repealing clause," an "independent Act of the Legislature enacted under the caption hereof," and must be regarded and understood, not as "a continuation of former laws," but, as if originally so drawn, as strictly a criminal statute. And then looking to the Civil Code of 1925, the omission of the former article 2104 of the revision of 1911 must be regarded and understood as a repeal thereof as applicable to civil cases. It was expressly declared "that all civil statutes of a general nature, in force when the revised statutes take effect, and which are not included or which are not hereby expressly continued, are repealed." By the revision of 1911 article 2104 was, as above determined, expressly made to be an article of the Civil Code, strictly applicable to civil cases and intended to be so in arranging it separately and specially in the Civil Code. Thus such article became in effect "a civil statute of a general nature," in distinction from local civil laws. Consequently an intentional omission, as seems to be of the article from the Revised Civil Code in 1925, operates to bring the omitted article within the terms of the repealing clause. It was held in American Indemnity Co. v. City of Austin,
The second point must be overruled. Article 1840, R.S. of 1925, has application only to appeals to the Court of Civil Appeals. It was originally section 39 of the act organizing the Courts of Civil Appeals. Acts of 1892, 1st Called Sess. p. 25; 10 Gammel's Laws of Texas, p. 389. The present article is the same in slightly changed phraseology which does not affect the meaning or intention of application. *193
It is believed that the trial court has correctly ruled in dismissing the appeal, and the judgment is accordingly affirmed.