Heirs of Ryon v. Rust

65 Tex. 529 | Tex. | 1886

Willie, Chief Justice.

The constitution of 1876 directed the legislature to provide for the transfer of such suits pending in the district courts as were within the jurisdiction of county courts. Art. 5, sec. 27. In obedience to this mandate of the constitution, the act of June 16, 1876, was passed, which declared that all such suits “be and they are hereby transferred to the proper county courts.” To accomplish the transfer of the cause from the docket of the district to that of the county court, no order of any court or judge was required. That was accomplished by the act itself. Immediately upon its taking effect, every cause of which the county courts had exclusive jurisdiction, and which was pending in any one of the district courts of the state, became a suit in the proper county court. The formality of entering it upon the docket of the one and erasing it from the docket of the other was a ministerial act for the appropriate clerk to perform. It then became the duty of the district judge to order his clerk to forward the papers in such suits, with a transcript of the proceedings had, to the county court. There was no provision that this order should be entered upon the minutes of the court, and it was one that could be made in vacation. In the absence of proof to the contrary, if the papers were actually transmitted to the county court, it would be presumed that the judge had done his duty and made the order. The fact that no such order was entered of record would not be sufficient to show that it had never been made.

The order was not essential to the transfer, as the legislature had accomplished that by its own act. It was not, therefore, a jurisdictional fact necessary to give the county court cognizance of the cause. If not made by the judge, it would be a mere irregularity, which would be waived by a failure to object to it in the county court, and there was, no exception taken by the appellant in that court as to the manner in which the case, and the papers pertaining to it, reached there. We think the county court acquired jurisdiction of the cause, and it was afterwards returned to the district court in a manner and for a reason provided by the constitution, and there was nothing in the question of jurisdiction, raised for the first time in the district court upon its return to that court.

There was no bill of exceptions taken to the manner in which the court stated its conclusions of law and fact. If there had been, the exceptions would have been frivolous. The findings of fact were properly separated from those of law. If it should happen that some legal conclusion should be included in the findings of fact, it certainly would not vitiate the whole statement of the judge.

There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered February 23, 1886.]