156 S.W. 520 | Tex. App. | 1913
Lead Opinion
This action is one of mandamus, instituted in the county court of Wilbarger county, Tex., by appellee, to compel Hart, the justice of the peace, and appellant herein, to “prepare a complete record and transcript of all the proceedings had” in the justice court in the case of Stultz v. Wilson, “in order that a trial de novo may be had in said county court of Wilbarger county”; the record and evidence in this mandamus proceeding showing that, at the trial of the original cause in the justice court, Stultz, the respondent in mandamus, and appellant herein, obtained a judgment against Wilson in the justice court for $129.95 and foreclosure of an attachment lien upon certain horses, the evidence further disclosing that the appellee and relator herein, as the unsuccessful litigant in the justice court proceeding, attempted first to perfect his appeal by giving security for costs, which was unavailing, and, second, within the requisite ten days, in lieu of the appeal bond attempted to comply with the other provisions of the statute, by filing an affidavit in forma pauperis, and making proof of his inability to pay the costs, or any part thereof.
“Art. 2394. Where the appellant is unable to pay the costs of appeal, or to give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the same, at any time within ten days from and after the date of the judgment rendered therein, and shall consist of the affidavit of said party stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit; whereupon, it shall be the duty of the court trying the case, or the justice of the peace of the precinct in which said case was tried, or the county judge of the county in which the suit is pending, to hear the evidence and to determine the right of the party to his appeal.”
“Art. 2395. When the bond, or the affidavit in lieu thereof, provided for in the two preceding articles, has been filed, and the previous requirements of this chapter have been complied with, the appeal shall be held to be perfected.”
In discussing this matter, it is to be noted that the statute regulating appeals from the justice court, prescribing the affidavit in forma pauperis, is in substance the same and in language in some respects identical, as the statutes prescribing the same affidavits in lieu of an appeal bond in cases of appeal from the district and county courts; and the decisions of the higher courts in construing the latter statutes, on account of the identity of the statutes, would necessarily control the construction of the statute with reference to appeal from justice courts: “The statute defines what the proof it requires shall be, when it provides that it shall consist of the affidavit of said party, stating his inability to pay the costs, and its evident purpose is to enable the appellant to make prima facie proof of his inability to give the required security and to enable those having conflicting interest to controvert such proof.” Smith v. Buffalo Oil Co., 99 Tex. 78, 87 S. W. 659. In the absence of a contest, “the affidavit of the party is sufficient,” without further proof, to make out the prima facie case of inability. Graves v. Horn, 89 Tex. 78, 33 S. W. 322.
The statute with reference to appeal from justice court, where appellant is unable to “pay the costs of appeal, or to give security therefor,” says that, “in order to do so, he shall be required to make strict proof of his inability to pay the costs or any part thereof.” New Revised Statutes, art. 2394. The statutes with reference to appeal from district and county courts uses the identical language quoted, and in passing upon the above language of the statute the Supreme Court said, in the case of Pendley v. Berry, 95 Tex. 74, 65 S. W. 33: “We think the statute means that where the party can pay the costs, or a part thereof, he must do so. This is implied in the rule that unless he can show his inability to pay any part of the costs he cannot appeal upon affidavit alone. Plainly, if this state of facts cannot be shown, the intention is that the party shall do that which he cannot show his inability to do.” (The emphasis is ours.)
All these statutes also use the following language: “Such proof shall * * * consist of the affidavit of said party stating his inability to pay the costs.” And the Supreme Court further, in commenting upon the case of Stewart v. Herdenheimer, says that the case simply held that the words “or any part thereof,” with reference to the inabil
It is to be observed that relator, in his application for mandamus, in reality does not attach the action of the justice of the peace in setting aside the affidavit. We think it is clearly incumbent upon him to plead and prove that the justice of the peace had not the right to set aside the affidavit in order to show the county court that he was entitled to right of appeal; the opinions of the Supreme Court are to our minds conclusively persuasive of the proposition, and in the event of another hearing, and another appeal, we would suggest that the record be more specific. For example, the notation on the docket of the justice court in regard to the filing of the affidavit, introduced by relator, says:' “Affidavit in lieu of cost bond filed this 7th day of May, A. D. 1912, and proof made of inability to make cost bond or secure same. P. L. Hart, J. P., Preet. No. 7.” If such is the affidavit and the record speaks the truth, the form of the affidavit really controlling under the decisions, oral proof being unnecessary until the contest arises, relator has not complied with the law. It is true the justice of the peace says, “an affidavit in forma pauperis” was presented to him; but, if his docket bespeaks a character of affidavit in forma pauperis, it is not one. The affidavit is not. in the record.
Rehearing
On Motion for Rehearing.
The motion for rehearing is overruled.
Lead Opinion
This action is one of mandamus, instituted in the county court of Wilbarger county, Tex., by appellee, to compel Hart, the justice of the peace, and appellant herein, to "prepare a complete record and transcript of all the proceedings had" in the justice court in the case of Stultz v. Wilson, "in order that a trial de novo may be had in said county court of Wilbarger county"; the record and evidence in this mandamus proceeding showing that, at the trial of the original cause in the justice court, Stultz, the respondent in mandamus, and appellant herein, obtained a judgment against Wilson in the justice court for $129.95 and foreclosure of an attachment lien upon certain horses, the evidence further disclosing that the appellee and relator herein, as the unsuccessful litigant in the justice court proceeding, attempted first to perfect his appeal by giving security for costs, which was unavailing, and, second, within the requisite ten days, in lieu of the appeal bond attempted to comply with the other provisions of the statute, by filing an affidavit in forma pauperis, and making proof of his inability to pay the costs, or any part thereof.
The articles of the statute with reference to appeals by affidavit from a judgment of the justice court are as follows:
"Art. 2394. Where the appellant is unable to pay the costs of appeal, or to give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the same, at any time within ten days from and after the date of the judgment rendered therein, and shall consist of the affidavit of said party stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit; whereupon, it shall be the duty of the court trying the case, or the justice of the peace of the precinct in which said case was tried, or the county judge of the county in which the suit is pending, to hear the evidence and to determine the right of the party to his appeal."
"Art. 2395. When the bond, or the affidavit in lieu thereof, provided for in the two preceding articles, has been filed, and the previous requirements of this chapter have been complied with, the appeal shall be held to be perfected."
In discussing this matter, it is to be noted that the statute regulating appeals from the justice court, prescribing the affidavit in forma pauperis, is in substance the same and in language in some respects identical, as the statutes prescribing the same affidavits in lieu of an appeal bond in cases of appeal from the district and county courts; and the decisions of the higher courts in construing the latter statutes, on account of the identity of the statutes, would necessarily control the construction of the statute with reference to appeal from justice courts: "The statute defines what the proof it requires shall be, when it provides that it shall consist of the affidavit of said party, stating his inability to pay the costs, and its evident purpose is to enable the appellant to make prima facie proof of his inability to give the required security and to enable those having conflicting interest to controvert such proof." Smith v. Buffalo Oil Co.,
The statute with reference to appeal from justice court, where appellant is unable to "pay the costs of appeal, or to give security therefor," says that, "in order to do so, he shall be required to make strict proof of his inability to pay the costs or any part thereof." New Revised Statutes, art.
All these statutes also use the following language: "Such proof shall consist of the affidavit of said party stating his inability to pay the costs." And the Supreme Court further, in commenting upon the case of Stewart v. Herdenheimer, says that the case simply held that the words "or any part thereof," with reference to the *522 inability to pay, does not have to be inserted in the affidavit, and the affidavit without such language is sufficient "when uncontested," as was previously held in the Graves-Horn Case, supra; but when it comes to a contest, the words of the statute, "he shall be required to make strict proof of his inability to pay the costs, or any part thereof," is construed by the Supreme Court in the following language: "But the previous part of the statute cannot be wholly rejected (meaning the last quotation from the statute) and its operation is to require that upon contest the facts must show the inability spoken of" — that is the inability to pay a part of the costs — as well as the whole costs, where the inability of the appellant is questioned and contested by the appellee. Pendley v. Berry, supra.
Of course, under the rulings of the Supreme Court, when a contest is filed, the "facts must show the total inability" mentioned in the statute, in order to preserve the right of appeal, or at least, if the record shows the ability to pay the costs or a part thereof, the affidavit is overturned and the right is lost. And in order for the mandamus to lie against the opposite party, who is an officer, "We must see that the act which it is sought to compel him to perform is one that is imperatively required of him by law to perform." Insurance Society v. Love,
This record conclusively shows that four horses were conveyed to the relator's wife, and suggests that it was done in consideration of the relinquishment of her homestead right, transferred previously by husband and wife; and the horses conveyed to her, as indicated in the record, in order that she might hold the property for reinvestment in another home. Relator said, "that the bill of sale was issued to her for the reason that she refused to sign the deed to the home unless this property was placed in her name." "She wanted it that way so that she could see that it went into another home." The same were the facts in the case of Blum v. Light,
It is to be observed that relator, in his application for mandamus, in reality does not attach the action of the justice of the peace in setting aside the affidavit. We think it is clearly incumbent upon him to plead and prove that the justice of the peace had not the right to set aside the affidavit in order to show the county court that he was entitled to right of appeal; the opinions of the Supreme Court are to our minds conclusively persuasive of the proposition, and in the event of another hearing, and another appeal, we would suggest that the record be more specific. For example, the notation on the docket of the justice court in regard to the filing of the affidavit, introduced by relator, says: "Affidavit in lieu of cost bond filed this 7th day of May, A.D. 1912, and proof made of inability to make cost bond or secure same. P. L. Hart, J. P., Prect. No. 7." If such is the affidavit and the record speaks the truth, the form of the affidavit really controlling under the decisions, oral proof being unnecessary until the contest arises, relator has not complied with the law. It is true the justice of the peace says, "an affidavit in forma pauperis" was presented to him; but, if his docket bespeaks a character of affidavit in forma pauperis, it is not one. The affidavit is not in the record.
The county court, we think, is entitled to jurisdiction of this mandamus under the Constitution, "as necessary to the enforcement of the jurisdiction of that court" in order to determine the relator's right to appeal to that jurisdiction, and we do not think the objection that certiorari is an adequate remedy is tenable; if relator is unable to give bond on appeal, he would be unable to do it in a proceeding in certiorari; and, the matters discussed being apparent upon the record going to the very right of the case and the foundation of the cause, it is ordered reversed and remanded.
The appellee is insistent that fundamental error apparent upon the face of the record does not exist in this cause. In this cause the relator executed a pauper's affidavit in another proceeding in the justice court, which was set aside by the justice of the peace upon a contest filed by the opposite litigant in that cause, upon proper notice given to the relator, who was the defendant in the other case. The relator, in his petition for mandamus, in order to obtain the right of appeal, alleged the pauper's affidavit but did not assail the subsequent action of the justice of the peace in reversing his former action, in setting aside the pauper's affidavit. This fact was prominent in this record. This latter order of the justice of the peace, standing unassailed by relator in this mandamus proceeding in the county court, we decided then, and reiterate, that it went to the very right of the cause and to the foundation of this proceeding. It is true we inspected the record and discussed the inefficiency of evidence to support a fundamental finding necessary to maintain the judgment of the court; and, the lack of pleading being apparent, it was better to discuss the evidence than leave appellee in the dark; and without a pleading assailing the order of the justice of the peace, with the additional evident circumstances in the *524 record of an absolute lack of testimony to sustain the judgment of the court, we held that this order of the justice of the peace, not having been shown to have been improper, by either pleading or evidence, and fundamentally controlling the right of appeal, until stricken down, would necessarily stand.
The motion for rehearing is overruled.