Rodgers v. Alexander

35 Tex. 116 | Tex. | 1872

Walker, J.

This is a proceeding in mandamus on the part of the relator, Jesse Rodgers, to compel the respondent, Thad. T. Alexander, clerk of the district court of Fayette county, to send up to this court the record of a judgment from the District Court of Fayette •county, wherein Jesse Rodgers is plaintiff and Ñ. B. Ferguson is defendant; under the provisions of the act •of May 3,1871, General Laws of the Twelfth Legislature, page 74. There is no return nor answer to the alternative writ; but both parties have filed briefs.

We are informed from the respondent’s briefs, of the grounds on which he places his defense to the peremptory writ.

First, it is claimed that the act of May 3, 1871, does not apply to cases brought up on writ of error. This ground is manifestly untenable. This court has uniformly treated the writ of error, as a mode of appeal. (See Cheek and Collins v. Rodgers, 1 Texas, 440; Smith and Jaynes v. Gerlach and Levenhagen, 2 Texas, 424; Luckett v. Townsend & Moore, 3 Texas, 119; Tucker v. Anderson, 25 Sup. Texas Rep., 158; Prestig v. Prestig, 25 Texas, 585.)

It is claimed, secondly, that the judgment of the ■district court, in the case of Rodgers v. Ferguson, was .rendered prior to the act of May 3, 1871; and therefore the act, in its provisions, cannot apply to this case. We regard the act as purely remedial, and not retroactive in the sense inhibited by the Constitution of the State or of the United States. (See Cooley’s Constitutional Limitations, pages 286, 287, 288, 289; and the very numerous authorities cited in the notes.)

We will not hold the respondent as in contempt of court; he has no doubt acted under advice of counsel.

The reasons given by this court for its opinion in the State on relation of Honey, so far as the jurisdiction of the court is concerned, apply to this case, and will be so regarded.

The peremptory writ of mandamus will therefore issue as prayed for in the petition.

Mandamus awarded.