223 S.W. 714 | Tex. App. | 1915
Lead Opinion
This is an appeal from a judgment of the county court in appellee's favor for $145, besides costs of suit. The judgment is based upon a verified account by appellee for $130, which bears the file mark of a justice of the peace, but the record fails to contain a transcript made out by the justice showing that there was a trial or judgment of any kind in the justice court. It is from final judgments only that an appeal will lie from a justice's court, and it is certain that the amount in controversy is not within the original jurisdiction of the county court. It is therefore apparent that the record herein fails to affirmatively show, as must be done, jurisdiction in the county court, either original or appellate, to render the judgment appealed from. What then shall be done with the appeal?
It was suggested in the case of Wells v. Driskell,
In view of amended rule 22 (142 S.W. xii) and of the decision of our Supreme Court in *715
H. T. C. R. Co. v. Parker,
At this point, however, there is a pronounced divergence of opinion among us. Associate Justice BUCK is of opinion that we should follow the further suggestion in the Driskell Case and dismiss the appeal, while the majority think that the judgment should be reversed with direction to the county court to dismiss the case from its docket unless its jurisdictional facts be shown. The difference in view on the point of practice may, at first thought, be deemed of no importance, but if it be true, as our present record indicates as possible, that the county court was without either original or appellate jurisdiction, it is readily seen that a dismissal of the appeal leaves in apparent force a judgment of the county court, not void on its face, but rendered without authority, thus subjecting the judgment defendant to the necessity of further litigation by an appeal to a court of equity in order to relieve himself from a judgment in fact void. In order to avoid complications of this character, as we infer, our Supreme Court, in the case of Pecos N. T. Ry. Co. v. Canyon Coal Co.,
We should, perhaps, before closing the subject call brief attention to a distinction in the cases that has been given weight by the majority. There is a marked distinction, as we think, between cases where the law has given no jurisdiction whatever over the subject-matter in controversy and cases within the scope of the general powers conferred by law, but in which it appears that the court's jurisdiction has been irregularly set in motion, or where, as in the case before us, the record merely fails to affirmatively show that the proper steps have been taken to bring the court's power into active operation. In one class of cases there is an entire want of power, while in the other power or jurisdiction exists in a very important sense. Many cases and numerous *716
textwriters, which we will not take the time to cite and analyze, announce in general terms, without reference to any distinction, that the appellate court is without jurisdiction in cases where the trial court is without jurisdiction, and hence that the appellate court has no power to revise or alter the judgment below in any form, but can only dismiss the appeal. Yet, as we have seen, in the cases of Railway v. Canyon Coal Co. and Williams v. Steele, it was distinctly held by our Supreme Court that the Courts of Civil Appeals did have the power to set aside the judgment of the court below, notwithstanding the ruling that the court below was without jurisdiction, thus constituting an apparent conflict in the authorities. There should be, as it seems to the majority, no real conflict between the classes of cases. The first class, as it seems to us, is properly to be applied where the trial court under no circumstances could enter a lawful decree, while the latter cases are to be followed where the trial court in general terms has been given power over the subject-matter and persons, but in which it does not appear that such general power has been properly invoked. To illustrate, under our judicial acts the county court under no conceivable circumstances can be said to have jurisdiction to try a suit in trespass to try title to land, or a suit for divorce, as all power over these subjects has been given to a different trial court. Should a county court, therefore, enter a decree of divorce, or enter a judgment establishing title to land, the decree would be void on its face, for the reason that, in the light of the law that all men are presumed to know, it is apparent that the county court had no power or jurisdiction over the subject-matter. In such case the judgment is void upon its face, and can constitute no obstacle to the assertion of a right, or operate as an aid to any one claiming under it. In all such cases there is a want of jurisdiction in the strict sense of the term, and, as we think, it would be entirely proper for the appellate court to dismiss the appeal rather than to exercise appellate jurisdiction by reversing the judgment. But take the case we now have before us as illustrating the opposing class of cases, and which we think is within the principle followed in Railway v. Canyon Coal Co. and Williams v. Steele. The justice court undoubtedly had original jurisdiction to try the cause and enter a decree, and it is just as clear that our county courts in general terms have been given appellate jurisdiction over this class of cases. See Vernon's Sayles' Texas Civil Statutes, art.
It is ordered that the judgment herein be reversed, and the cause remanded, with direction to the county court to dismiss the case from the docket unless the jurisdictional facts be legally shown.
Dissenting Opinion
It is with regret that I am forced to dissent from the views expressed in the majority opinion by my Brethren, whose long service in this court would ordinarily incline me to defer to their judgment, and especially as to a matter of mere practice. If I did not feel that the path had been plainly blazed out by our Supreme Court, with instructions how to follow, I would not presume to differ from them in the conclusions reached as to the proper disposition of this case.
In the case of Wells v. Driskell,
"Upon the receipt of the transcript it shall be the duty of the clerk to examine it in order to ascertain whether or not, in case of an appeal, notice of appeal and a proper appeal bond or affidavit in lieu thereof (where bond is required) have been given; and in case of a writ of error, whether or not the citation in error appears to have been duly served, and error bond or affidavit in lieu thereof (which such bond is required) appears to have been filed. If it seem to him that the appeal or writ of error has not been duly perfected he shall note on the transcript the day of its reception and refer the matter to the court. If, upon such reference, the court shall be of *717 opinion that the transcript shows that the appeal or writ of error has been duly perfected, they shall order the transcript to be filed as of the date of its reception. If not, they shall cause the notice of the defect to issue to the attorneys of record of the appellant or plaintiff in error, as the case may be, to the end that they may take steps to amend the record, if it can be done, for doing which a reasonable time shall be allowed. If the transcript does not show the jurisdiction of the court and if after notice it be not amended, the case shall be dismissed."
In a number of instances the case of Driskell v. Wells has been followed by our Courts of Civil Appeals as to this feature of practice, notably in Powell v. Hill, 152 S.W. 181, and Freeman v. Miller, 160 S.W. 126, both by the San Antonio Court of Appeals, and the case of Cox v. Chanslor Son, 170 S.W. 120, by the Austin Court. But the majority of this court are of the opinion that the procedure directed in rule 1, supra, should not be followed in a case where the attention of the Court of Appeals is for the first time called to the defective condition of the record after submission, and they rely on rule 22 to sustain their views, which rule reads as follows:
"A cause will be properly prepared for submission only when a transcript of the record exhibits a cause prepared for appeal in accordance with the rules prescribed for the government of the district and county courts, and filed in the court under the rules, with briefs of one or of both the parties, in accordance with the rules for the government of the court. All parties will be expected, before submission, to see that the transcript of the record is properly prepared, and the mere failure to observe omissions or inaccuracies therein will not be admitted, after submission, as a reason for correcting the record or obtaining a rehearing."
In the first place, rule 22 was adopted by the Supreme Court March 15, 1911, and as a result of the general uncertainty among the profession and the variant holdings by the Courts of Civil Appeals as to the proper procedure to be followed in an instance of this kind, as shown in the case of H. T. C. Ry. Co. v. Parker,
"If the question presented were of first impression, we would not hesitate to declare that the judgment of the court in this case was authorized, appropriate, and timely. We think the rule laid down in Ross v. McGowen,
"It is not to be doubted that the enforcement of such a practice may, in individual cases, operate as a hardship, but it must be remembered that the orderly dispatch of the business of the court is a matter of general concern. A careful attention to the preparation of the record before it is filed, or any reasonable attention to the record after it is filed, but before submission, will obviate and prevent such a result. Certainly, it is not asking too much of a litigant to require him to exhibit before the court in due time and in due form the judgment of which he complains. To adopt any other rule is to encourage inattention and carelessness, to work confusion in the labors of the court, and to bring about delays in the administration of justice. However, while not in terms overruled, it cannot be doubted that the *718 later decisions of this court have substantially departed from the rule laid down in Ross v. McGowen, supra, and that this later rule has been accepted and followed by practically all of the Courts of Civil Appeals.
"In the case of Western Union Teleg. Co. v. O'Keefe,
"Again, in the case of Railway Co. v. Peery,
It will be noted that in the cases cited in the opinion in the Parker Case there had been a judgment of dismissal by the Court of Civil Appeals, with no opportunity afforded the appellant or plaintiff in error to perfect or correct the record held to be defective, and the Supreme Court in each instance had held that such failure upon the part of the Court of Civil Appeals to afford such opportunity was error, and had not held that the judgment of dismissal was erroneous in itself, where the attention of the appellant or plaintiff in error had been called to the omission, and he had failed to perfect the record within a reasonable time. Certainly, rule 22 does not attempt to prescribe the proper disposition of a case, the record of which is found to be defective or wanting in any essential particular, and, taking the language in its strongest sense, it can only be held to provide what the transcript of the record must exhibit on appeal and the time within which, to wit, before submission, such defective record may be perfected. The fact that this rule uses the language that "all parties will be expected, before submission, to see that the transcript of the record is properly prepared," does not relieve the appellant or plaintiff in error, in the opinion of the writer, of any burden of presenting to the appellate court a transcript showing affirmatively that the judgment of which he complains is one of which the trial court had jurisdiction, and of which the appellate court is authorized to entertain jurisdiction upon appeal. To hold otherwise is putting a premium on the carelessness of an appealing party, and to reverse a judgment and remand a cause because such record does not affirmatively show jurisdiction in the trial court to render the judgment it did render, or in the appellate court to entertain jurisdiction, is affording to an appealing party the very result which he is seeking to accomplish. That the laboring oar is in the hands of the appealing party is to the mind of the writer evident from a careful reading and comparison of the rules provided for the guidance of the Court of Civil Appeals, and from the expressions of the Supreme Court in those decisions cited, and in innumerable other cases not necessary here to cite.
Therefore the writer believes that, even though it may properly be said that appellant had notice of the defective record at the time of submission, and has up to this time failed to take any steps to remedy such defect, and therefore, cannot be held to be entitled to the notice provided for in rule 1, yet there is no good reason why he should be permitted to reap as the fruit of his own negligence the utmost relief he could have secured by the utmost diligence. It is the opinion of the writer that appellee's motion to dismiss this appeal should be granted.