295 S.W. 941 | Tex. App. | 1927
This is an appeal from an order granting a new trial to appellees after a hearing of the case in a district court of Dallas county had resulted in a judgment favorable to appellant. While this appeal was pending, but prior to its submission in this court, the Legislature amended article 2249, R.C.S. 1925 (the article providing foi appeals to this court from judgments of district and county courts), by striking from its terms the right to appeal from an order granting a new trial. As this court must *942 take judicial notice of this legislation, the question of its jurisdiction to pass upon this appeal is suggested.
Section 6 of article 5 of our Constitution defines the jurisdiction of the Courts of Civil Appeals as follows:
"Said Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases in which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. * * * Said courts shall have such other jurisdiction, original or appellate, as may be prescribed by law."
Following the creation of the Courts of Civil Appeals in 1891, by the adoption of said section 6 of article 5 as an amendment to the Constitution, the Legislature in 1892 passed an enabling act, in which the right of appeal to such courts was given as follows:
"An appeal or writ of error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases of which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds one hundred dollars, exclusive of interest and costs." Article 2078, Vernon's Sayles' Statutes 1914.
It will be noted that, in the exercise of its constitutional power to restrict and regulate the appellate jurisdiction of the Courts of Civil Appeals, the Legislature allowed appeals only from final judgments of district and county courts. From time to time the Legislature extended the right of appeal to include certain interlocutory orders entered in such courts.
In 1925 the Thirty-Ninth Legislature (Laws 1925, c.
"An appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases in which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds one hundred dollars exclusive of interest and costs. An appeal may be taken to the Court of Civil Appeals from every order of any district or county court in civil cases granting motions for new trials in any of the above mentioned cases and such appeal shall be taken within the same time and in the same manner as if the judgment was final."
The only conclusion to be drawn as to the purpose of the Legislature in the amendment to this said article of the statute is that it intended to extend the right of appeal to include an order of the court granting a motion for a new trial and thus allow appeals from such orders as well as from final judgments.
The amendment in question (Laws 1927, c.
It is argued by appellant that, as the jurisdiction of this court had attached prior to the taking away of the right of appeal, the Legislature did not intend by said amendment to deprive this court of its jurisdiction to pass upon this case. To this contention, we cannot agree. If the Legislature had so intended it could have manifested that intention by a saving clause in reference to cases in which appeals from such an order had been perfected prior to the passage of the act. The right of appeal in the instant case is not one of constitutional guaranty, but rests entirely upon the legislative will. Its allowance gave no vested right to any litigant, but only prescribed for him a remedy, and this remedy was subject to the legislative will. When this remedy was taken away no vested right was disturbed. The Legislature in adopting said amendment invaded no power of this court that was not subject to legislative will. It did not disturb judgments of this court that had already been rendered, and a refusal to entertain jurisdiction of this appeal does not give to this law a retroactive effect.
The position of this court, in reference to its power to entertain this appeal, is so tersely and ably stated by Chief Justice Waite of the United States Supreme Court in the case of Baltimore Potomac R. Co. v. Jas. H. Grant,
"The act of 1879 [
"It is claimed, however, that, taking the whole of the act of 1879 together, the intention of Congress not to interfere with our jurisdiction in pending cases is manifest. There is certainly nothing in the act which in express terms indicates any such intention. Usually where a limited repeal only is intended, it is so expressly declared. Thus, in the act of 1875 (
We are of the opinion that this court now has no jurisdiction to entertain this appeal, and it is therefore dismissed.
Dismissed for want of jurisdiction.
In the Grant Case the appellant had a duly perfected appeal under the law as it existed at the time the appeal was taken, but the right of a judgment on the appeal was denied him, because Congress had taken away the jurisdiction of the court to review such a case. So in the instant case, Moore has an appeal duly perfected under the law *944 as it existed at the time such appeal was taken, but the right to judgment on the appeal is denied him, because of the act of the Legislature in taking away the jurisdiction of this court to review such a case.
The motion for rehearing is overruled.