170 S.W. 814 | Tex. App. | 1914
This is a quo warranto proceeding to test the validity of the incorporation of the city of Claude. Appellees have filed a motion to dismiss the appeal upon two grounds: (1) Because the state of Texas is *815 not a party to the appeal; and (2) because neither the transcript nor statement of facts were filed in this court within the 20 days prescribed by rule 7 for the Courts of Civil Appeals (142 S.W. x). The judgment of the court, overruling the motion for new trial, ends with the following language:
"To which order and judgment of the court the relators then and there in open court excepted and gave notice of appeal to the Court of Civil Appeals, etc. It is further ordered that relators have 40 days in which to make up and file their statement of facts and bills of exception herein."
The state of Texas gave no notice of appeal, and we think the first ground in the motion is well taken. The appeal bond, filed by relators, recites that Jerry Cavanaugh, M. L. Smith, and H. S. Dye, as principals, acknowledge themselves bound to pay to the city of Claude, etc., but the state of Texas is not named in it as a party to the appeal.
This being an action to determine the validity of the incorporation of a municipality, it is a quo warranto proceeding of a public nature.
"The right to file an information in the nature of a quo warranto belongs to the state, and the institution of the action is a matter within the discretion of the Attorney General, and the attorney or other authorized state officer must institute quo warranto proceedings for the redress of injuries to the public right." 32 Cyc. 1432.
"The nature of proceedings by quo warranto proceedings at common law was such that the sovereign was necessarily plaintiff, and the general rule still is that quo warranto proceedings must be carried on in the name of the state or the people." Id. 1440.
"The purpose of the quo warranto proceedings often determines who may apply for the writ. The general rule is that, where the remedy is sought for a public wrong, proceedings should be instituted by and upon the relation of the Attorney General." Id. 1443.
"In proceedings against a municipal corporation to test the validity of its organization or to arrest a usurpation of corporate powers, a private citizen cannot, as a general rule, file the information; but it has been held that, if the suit is in fact conducted by the proper officer, it is no objection that a private person is named as relator." Id. 1444.
By force of the statute in this state the Attorney General, district or county attorney of the proper county or district, either of his own accord or at the instance of any individual relator, has the right to ask leave to file an information and to present the petition in a case of this character, but the proceedings is nevertheless one which must be conducted in the name of the state of Texas, and in which the attorneys representing the state have the right to control the litigation. Matthews v. State,
32 Cyc. p. 1466, announces the rule that, if the action be to dissolve a corporation, a private relator cannot appeal from a judgment in favor of the corporation, citing State v. Douglas County Road Co.,
In Churchill et al. v. Walker et al.,
"As to the motion to dismiss this writ of error because the state is not a party to the same, we have to say that we think, as the information is filed by the solicitor general as the officer of the state in the Eastern judicial circuit, and for the state, and could be filed in no other name but that of the state, we cannot say that the state was not a necessary party here. It is not a party, because its officer does not sign the bill of exceptions for the state, nor do other counsel as representatives of the state."
However, Judge Speer proceeded to dispose of the case on its merits. In our opinion this cannot be done in the instant case, since the state is a necessary party to the appeal, and the matter is jurisdictional.
With reference to the second ground, we think that is also jurisdictional. In C. B. Livestock Co. v. Parrish,
In White v. Rowlett,
Judge Speer in the Livestock Co. v. Parrish Case said:
"Ordinarily an appeal is perfected, and the jurisdiction of this court attaches on the filing of the appeal bond, and that may be and doubtless is true under our present statute, in cases of appeal from interlocutory orders in injunction cases. It is further ordinarily true that the failure to file a transcript within the statutory time is not jurisdictional, but may be waived. The reason for this is that the Legislature evidently so intended, as witness the language of article 1015, Sayles' Annotated Civil Statutes 1897 (R.S. 1911, art. 1608): `The appellant or plaintiff in error shall file a transcript with the clerk of the Court of Civil Appeals within ninety days from the perfecting of the appeal or service of the writ of error: Provided, that for good cause the court may permit the transcript to be filed thereafter upon such terms as it may prescribe.' Prior to the act of 1907, appeals were not allowed from interlocutory orders in injunction cases. By that act, as amended, * * * it is provided: `Any party or parties to any civil suit wherein a temporary injunction may be granted, refused or dissolved under any of the provisions of this title in term time or in vacation, may appeal from the order of judgment granting, refusing or dissolving such injunction to the Court of *816 Civil Appeals having jurisdiction of the case, but such appeal shall not have the effect to suspend the enforcement of the order appealed from, unless it shall be so ordered by the court or judge who enters the order: Provided, the transcript in such cases shall be filed with the clerk of the Court of Civil Appeals not later than fifteen days after the entry of the record of such order or judgment granting, refusing or dissolving such injunction. * * * In view of the emphatic language above quoted as to the time of filing the transcript and the evident purpose of the Legislature that such appeal should in no event be long delayed, we think it quite clear that we have no discretion to permit the filing of the transcript after the time provided by law has elapsed. If we could for good cause extend the time one week, we might do so for any number of weeks, and thus not only delay the hearing of such appeal, but probably do so beyond the time when the case proper would be heard on its merits in the trial court, whereas the appeal, to be of any value to either party, should be determined before the case is reached for trial below. While this consideration, of course, is in no manner jurisdictional within itself, it at least affords a reason, if one were needed, why the Legislature provided that the transcript on appeal from an interlocutory order should not be filed in this court after 15 days from the date of the order appealed from."
As explaining the action of the Supreme Court in limiting the time of the transcript in quo warranto proceedings in this court to 20 days, this language of article 6401, Vernon's Sayles' Civil Statutes, is pertinent:
" * * * And in cases of appeal to which either party may be entitled the said court shall give preference to such cases and hear and determine the same at the earliest day practicable; and all such appeals shall be prosecuted to the term of the court in session or the first term to be held, if not in session after judgment has been rendered in the district court."
Article 1638 provides that the petition for quo warranto may be presented in the first instance to the district court of the proper county in vacation for leave to file the information.
Before the promulgation of rule 7 for the Courts of Civil Appeals, the Supreme Court, passing upon the statute with reference to quo warrantor proceedings, said it was the intention of the Legislature that this character of action should be speedily disposed of, and held appellants to strict compliance with the requirements of such statute. I. G. N. Ry. Co. v. State,
The motion to dismiss is sustained. Dismissed.