58 Tex. 483 | Tex. | 1883
This court has no appellate jurisdiction except where the district court has rendered a judgment, final in its character, disposing of the subject matter of the controversy.
So long as the judgment of that court remains' under its control, and subject to be altered or set aside by it, it is not in its nature that character of final judgment which can be made the subject of direct revision by this court. R. S., art. 1380; Const., art. V, sec. 3.
The appellate jurisdiction of this court cannot, in the nature of things, attach until the judgment sought to be passed under review has become final and conclusive in fact, as well as in form and name. The district courts of this state have, from the nature of the broad grant to them in the constitution of large original judicial power in its fullest sense, very extensive and exclusive jurisdiction, and it must follow that the supreme court, having only appellate authority, is as powerless as the lowest court in the state to control or revise its action, either on appeal or writ of error, until the district court has exhausted the power granted to it by the constitution as the trustee and sole depositary of that valuable and extensive portion of the judicial authority with which it is clothed by the organic law, and in the just and lawful exercise of which it is as independent of, and as free from the control of this court, as it is and ought to be free from the control of the executive and legislative branches of the government. While it is deliberating upon the subject matter before it for decision, while it is exercising its judicial functions, its power to decide what shall be its ultimate and final determination of the pending controversy is absolutely beyond the control of this court. When it has performed this high duty, when its grasp upon the subject matter of the suit has relaxed, and when its power over its orders and action ceases by the operation of the laws and constitution longer to exist, then, and not before, can the revisory jurisdiction of this court be called into exercise, by virtue of the grant of appellate judicial power given to it by the constitution and laws. In its own peculiar sphere, the district court is itself independent and supreme in its power, and this court has no authority to inquire into or revise its judgments during the period of time when, by its very .organization and constitution, it still has the power to alter or to change them. This has been the uniform decision and practice of this court with reference to judgments of the district court from its first organization.
This question, which is admitted to be one of doubt and difficulty, has been so fully treated in the recent opinion of this court in Blum
This whole subject has, however, been again fully considered by ns, and the additional arguments and authorities produced bearing on the question, including those cited from the supreme court of the United States, have all been examined, and we see no reason to doubt the correctness of the conclusions arrived at by the court in the case of Blum v. Wettermark.
In addition to the clauses of the statute and cases there cited, we will in this connection call attention briefly to a few other clauses that were no doubt then considered by the court, though not mentioned in the opinion.
It- is now contended that arts. 2268 and 2269, R. S., have by some means not fully explained, worked' a change in the old law upon which the former decisions of this court relied ón in Blum v. Wettermark were based. These articles simply regulate, substantially in accordance with the act of June 4, 1873 (Pasch. Dig., art. 3772), the issuance of execution during the term of the court when the judgments on which they are based were rendered. The old act of 27th of January, 1842, in its third section (Hart. Dig., art. 1325), provides that if a defendant in a judgment that has been rendered during the term of the court is about to remove his property beyond the county, execution may issue on such judgment during term time. Under this act, it might issue not only before the final adjournment of the court, but during the term, either before or after a motion for new trial had been made and refused, and notice of appeal given. It has never been supposed that this provision operated in the least to deprive the district court of that inherent power which it has as a court to revise and change its own action and orders during the term, and grant a new trial if necessary, notwithstanding the issuance of execution before the rising of the court, and of the fact that a new trial had been refused and notice of appeal given. The law has in principle been the same as to the issuance of executions during term time from 1842'to the present time.
Article 1034, Be vised Statutes, which is in substance nothing more than a re-enactment of the law as it existed before that date as to appeals since the first organization of this court, provides that when an appeal from a final judgment of the district court has been taken, and a bond filed, it shall be the duty of the appellant to file a transcript in the supreme court on or before the first day of the term of that court to which it is returnable, which term of the
The words used in this article, “ next succeeding term ” (of the district court) “ when the appeal was perfected,” evidently were not intended to convey the idea that the twenty days after the appeal bond was given were to be computed from that particular day in the term of the district court when the appeal was perfected, if it was (as it frequently was) perfected during the term; but the time was, it would seem, intended to be computed from the last day of the term of the district court during which term the appeal was perfected.
If this be not the obvious meaning of this article, as it is believed to be, such has been, or at least was, its universal interpretation by the bench and bar of this state in practice, until a very recent period. It is believed that one of the main reasons for the rule (51) governing the district court, which requires that the day when the term of the district court ended shall be stated on the heading of the transcript, was to enable this court to determine the extent of its control over the judgment of the court below.
We believe that the legislature has not, by any enactment up to this date, declared its purpose to change the law as it has heretofore existed and been expounded by the courts of this state, to the effect that the district court has, during its term, complete and perfect control over all its orders and judgments, and that the appellate power of this court cannot be exercised as to them until that court finally adjourns.
If there are any evils that are likely to arise at this day from the observance of this rule, they might be prevented by shortening the terms of the district court, or by the legislative department passing suclr other act in relation to this subject as could be lawfully done, without abridging or interfering with the judicial power vested by the constitution in the district court.
When the rule to show cause was issued in this case, the writer was not then aware of the decision of this court made in the case of Blum v. Wettermark, it having been very recently made, and being in fact at that time still pending before this court on an application for a rehearing. The rule nisi was then issued in accordance with the practice of this court (Meyer v. Carolan, 9 Tex., 250), and
Application defused.
