70 S.W. 945 | Tex. | 1902
The Court of Civil Appeals for the Fifth District presents the following certificate for a decision of the questions stated:
"Texana Scales, joined by her husband, brought suit in the District Court of Johnson County against Elizabeth Marshall, in trespass to try title, to recover a tract of land situated in said county. A trial resulted in a judgment in favor of the defendant and the plaintiffs appealed to this court, where on November 24, 1900, the judgment was reversed and the cause remanded, the costs of appeal being taxed against the appellee. Scales v. Marshall, 60 S.W. Rep., 336. A motion for rehearing was filed by the appellee and was overruled on January *141 5, 1901. No further action was taken by either party until June 30, 1902, when the appellants paid the costs of appeal and mandate was issued on the same day at their instance and request. The mandate was filed in the trial court on July 4, 1902. On September 17, 1902, the appellee, Elizabeth Marshall, filed a motion in this court setting up the facts above stated and praying for the recall of said mandate. The motion was based upon art. 976a, chap. 54, Acts 1901, which reads as follows: `No mandate shall be taken out of the Supreme Court, or Courts of Civil Appeals, and filed in the court wherein said cause originated unless the same is so taken within the period of twelve months after the rendition of final judgment of the Supreme Court, or courts of civil appeals, or the overruling of a motion for rehearing. The provisions of this act shall only apply to cases which are by the Supreme Court, or courts of civil appeals, reversed and remanded, and if any cause is reversed and remanded by said Supreme Court, or courts of civil appeals, and the mandate is not taken out within twelve months as hereinbefore provided, then upon the filing in the court below of a certificate of the clerk of the Supreme Court, or courts of civil appeals, that no mandate has been taken out, the case shall be dismissed from the docket of said lower court; provided, that in any cause which has heretofore been reversed and remanded by the Supreme Court, or the courts of civil appeals, the mandate in all cases shall be taken out within twelve months from and after the passage of this act, and not thereafter.' The contention is that the statute cited applies to cases of this character and that, as the mandate was not applied for until more than twelve months after the passage of said act, the period of limitation was complete and the mandate was therefore illegally issued. The appellants waived service of the motion and filed an answer. The appellee did not apply to the clerk of this court for the certificate provided for by said article until after the mandate had been issued and had been filed in the District Court.
"Question 1. Does the said act apply to a case like this where the plaintiff in the trial court has been cast in the suit and has appealed and secured a reversal of the judgment against him, the cost of appeal being taxed against the other party?
"Question 2. If the said act applies to this case, did limitation begin to run from the date of the passage of the act or from the time it went into effect?
"Question 3. The appellee not having applied for the certificate provided for by the said act until after the mandate was issued, is she precluded thereby from having the mandate recalled?
"Question 4. Should the motion be sustained and the mandate recalled?"
1. The case stated is clearly included in the language of the act, and the courts are not at liberty to make it an exception to the rule declared, where the Legislature has made none. The broad declaration that "no mandate shall be taken out," etc., with the proviso that *142 the act shall apply only to cases which are reversed and remanded, is equivalent to saying that no mandate shall be issued in any cause, in which the judgment has been reversed and the cause remanded, after the expiration of the prescribed time. As, under other provisions, either party is allowed to take out the mandate, no impossible condition is imposed. Batts' Stats., arts. 1029, 1036.
2. The word "passage" is used, in connection with legislation, in several senses. The adoption of a measure by either house is spoken of as its passage through that house. The final adoption of a bill by both the house and the senate is commonly spoken of as its passage. Again, after such adoption by the Legislature, the approval of a bill by the Governor is properly called its passage. Where acts take effect from their passage, the time of approval by the Governor, or of final adoption over his veto, or of their becoming laws without his signature is, in law, called the time of their passage. But where the word is employed in an act which is finally passed at one time to take effect at a later time, it may, by reason of a somewhat common usage, be taken as referring to the latter date, unless such a construction is contrary to the intention appearing from the whole statute. The language of statutes which thus take effect at times subsequent to those of their adoption is usually taken as speaking only when they begin to operate as laws. The code of Iowa, construed in Charless v. Lamberson,
We do not regard the decision in Baker v. Compton,
3. The decision of the second question renders the third immaterial, and answers the fourth in the negative.