Hart v. Mills, 38 Tex. 513

Hart v. Mills

38 Tex. 513 | Tex. | 1873

Walker, J.

The only question which we have felt called on in this case to consider is that involved in the motion to dismiss the writ of error. The writ was not sued out within the time limited by law for bringing causes to this court from the District Courts by writ of error.

The argument in the case turns upon the question involved and decided in Bender v. Crawford, 33 Texas, 745. It may be well here to remark that the latter case is treated in a note by the Reporter in Story v. Runkle, 33 Texas, 398, as in conflict with the latter case. Whatever may be the conflict between these two cases, we think it is well disposed of in the closing paragraph of the syllabus to Bender y. Crawford, and we again say that that portion of the opinion in Story v. Runkle, which is in conflict with Bender v. Crawford, is obiter dicta. In Crawford v. Bender the court meant no more than to interpret the 43d Section of the 13th Article of the Constitution, in its application to the time within which civil suits might be commenced. There are a number of limitations in the probate acts and practice acts which do not *516come within the meaning of the Constitution, when it speaks of the statutes of limitation of civil suits. It is true that in a certain sense all these statutes are statutes of limitation within the general meaning of the term; but we have not heretofore held and cannot now hold that these statutes are within the meaning of the Constitution, and the question is not therefore passed upon by the court in Bender v. Crawford. We think the Constitution has reference merely to the time in which civil actions may be commenced in the State courts, and does not apply to matters of practice in the courts touching actions therein pending.

The time given for the prosecution of writs of error to the Supreme Court is regulated by a rule of practice, and we do not think it capable of any other construction, although it may be found in the general statute of limitation. I think it is .well remarked, in the brief of the appellee, that the statute fixing the time within which a cause must be taken to the Supreme Court, is no more nor less a statute of limitation than that which prescribes the time within which a record must be filed in this court, or a motion made for a new trial in the District Court, or a suit brought against an administrator or executor on a rejected claim.

The constitutional provision undoubtedly applies to actions which have not yet been prosecuted, and not to those pending in the courts.

It is maintained in argument Jby the appellant’s counsel that the prosecution of a writ of error is a new and original suit, and that it is not a continuation of the original cause; and the case of Taylor v. Boyd, 3 Ohio, 354, is referred to as authority in support of this position. This doctrine should not be recognized in the State of Texas, where the affirmance of a judgment .in the Supreme Court recognizes the vitality of the judgment from *517the date of its rendition in the District Court. The writ of error in this case not having been sued out within two years of the rendition of the judgment, must be dismissed.

Dismissed.