299 S.W. 497 | Tex. App. | 1927
At the May (1927) term of the Seventy-Third district court of Bexar county, Santos Leal, Jr., obtained a judgment against E. R. Leal, from which judgment the latter desired to appeal to this court. That term of the court was adjourned on July 2, 1927. On July 7th thereafter E. R. Leal filed an affidavit setting up his inability to pay the costs of an appeal from said judgment, or to give security therefor, and thereafter made strict proof of such inability, before the county judge of Bexar county, who entered an order to that effect, decreeing that Leal was "entitled and is hereby allowed to prosecute the appeal of said case to said Court of Civil Appeals without giving an appeal bond for costs"; but the county judge declined to order the official court reporter of said district court to prepare and deliver a statement of facts in the case, without charge, to Leal. Leal then made demand upon the reporter for such statement of facts, but was refused. He then filed a proceeding in the district court trying the case, setting out the foregoing facts, and praying for an order requiring the official court reporter to prepare and deliver, free of cost to him, a transcript of the evidence in the case, for his use on appeal. The district judge refused to make this order, whereupon Leal instituted an original proceeding in this court, praying for a writ of mandamus requiring the court reporter to furnish said transcript to the applicant, relator herein. It is shown that the trial below occupied several days, and that the transcript, when made up, will be a voluminous one.
The proceeding to procure the transcript of evidence from the court reporter was based upon articles 2266 and 2241, R. S. 1925, respectively:
Article 2266: "Where the appellant or plaintiff in error is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, to do so, he shall 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 case, and shall consist of the affidavit of the 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 the court trying the case, if in session, or the county judge of the county in which the suit is pending, shall hear evidence and determine the right of the party to his appeal."
Article 2241: "In any civil case where the appellant or plaintiff in error has made the proof required to appeal his case without bond, such party may make affidavit of such fact, and upon the making and filing of such affidavit the court shall order the official reporter to make a transcript in narrative form in duplicate and to deliver the same to said party but such reporter shall receive no pay for same."
The instrument or pleading by which relator invoked an order from the district judge to require the court reporter to furnish the desired transcript was denominated by *498 relator as an original mandamus proceeding, and respondent makes the point here that, that being a mandamus proceeding, relator's remedy was by appeal from the order denying the writ of mandamus. We are of the opinion, however, that, notwithstanding its designation as an "original application for the writ of mandamus," the proceeding in the lower court as a practical matter was in compliance with the provision in article 2241, and should be regarded and disposed of accordingly. Relator made the affidavit required in that article, having first made the showing required in article 2266. Having made the required showing, and having presented an affidavit thereof to the district judge, relator was entitled to the order as a matter of law; the district judge having no discretion in the matter. And relator should not be denied his remedy merely because he dressed his simple affidavit in the more showy garb of an application for writ of mandamus. Its purpose and effect were those prescribed by the statute, and entitled him to the order, whether described simply as an order, or a writ of mandamus; and, if seasonably sought, it should not be denied him because of a technical irregularity in the form of his demand. So, for the purposes of this decision, at least, it may be said that relator has shown himself entitled to all the relief validly afforded him under the provisions of articles 2266 and 2241; for, in pursuance of the procedure prescribed in those statutes, he conclusively established that he was unable to pay the costs of appeal, or give security therefor. His consequent right to have the official court reporter furnish him with a transcript of the evidence free of cost, and to appeal the case without paying or securing the payment of the costs of appeal, was contested, tried, and adjudicated in his favor. He filed with the trial judge an affidavit of those facts, together with a prayer for an order directing the court reporter to furnish him the transcript free of cost, although erroneously designating the pleading as an original application for mandamus. In short, he substantially complied with the statutes vouchsafing to him the right of appeal notwithstanding his poverty.
But the respondents, besides attacking the sufficiency of relator's compliance with the provisions of articles 2266 and 2241, to entitle him to the relief sought to be given him therein, attack the validity of those statutes, upon the ground that they have been superseded by other statutes in conflict with them, and by which they have been expressly repealed. This contention seems to be sustained by existing laws upon the subject.
Article 2241 was first enacted as a part of section 8, c. 119, of the General Laws passed at the regular session of the Thirty-Second Legislature in 1911. The provision was carried forward and preserved in amendments of that act passed in 1917 (Acts 35th Leg. c, 189), 1918 (Acts 35th Leg. [4th called Sess.] c. 79), and 1919 (Acts 36th Leg. c.
In the revision of the statutes in 1925, however, the provision was revived, and became the present article 2241, and it is upon this provision so revived that relator bases his right to require the court reporter to prepare and furnish the transcript. Undoubtedly the provision is a wholesome and just one, designed to secure the valuable right of appeal to every litigant without regard to his ability or inability to pay cash for the record on appeal, or to secure the payment thereof. For, the true spirit of a just government, more especially this one of ours, is to guarantee equal rights, and equal opportunity to enforce those rights, to every citizen, high or low, rich or poor, honored or despised, and this includes the untrammeled privilege of every person to litigate his rights on appeal, as well as in the trial courts. If he is without property or credit, the statutes provide that he may enter any trial court and have his rights there adjudicated, without paying the costs or securing the payment thereof, by simply declaring and proving his inability to do either. This right is given him by express statute which has been in force and unimpaired so long as to make it the settled policy of the state, and which no power or influence has had the temerity to tamper with. But not so with the right of appeal, for, by Act of the Thirty-Ninth Legislature (Gen. Laws, 1925, p. 669), the provision (article 2241) giving indigent litigants the right to demand free of cost a transcript of the evidence adduced in the trial court for his use on appeal, was omitted, and the amendatory act was so worded as to effectually repeal the provision, notwithstanding it was incorporated into the statutes as revised by that same Legislature. For, by subdivision 21 of the final title of the Revised Statutes of 1925, it was provided *499
that "nothing in this act shall be construed to repeal or in any wise affect the validity of any law passed by this Legislature in its regular session."
There being no law now in force requiring an official court reporter to furnish transcripts of evidence or statements of facts free of cost to the party requesting it, be he prince or pauper, relator's application for writ of mandamus will be denied.
