143 S.W. 958 | Tex. App. | 1912
This case is before us on a motion filed herein by defendant in error to dismiss the cause from the docket *959 of this court; the motion being based on the following grounds:
First. "Because, at the time the petition and bond for writ of error herein were filed with the clerk of the district court on September 23, 1911, a valid appeal of this case, and of the same cause of action and matters in controversy in which the enforcement of the judgment was suspended and superseded, was pending in this court and had not been abandoned, and was not disposed of until October 3, 1911, so that the filing of said petition and bond was improper and unauthorized, and this proceeding is improperly before this court" Under which the following proposition is submitted: "A writ of error cannot be legally sued out during the pendency of a valid appeal in the same cause of action, where the judgment has been superseded."
Second. "Because this court is without jurisdiction to hear and determine this cause, for this: The judgment of the district court herein was rendered on September 24, 1910. A valid appeal was taken from said judgment upon a supersedeas bond. Said appeal was pending before this court on September 23, 1911, being cause No. 10, when the petition and bond for writ of error were filed with the district clerk. Said appeal was set down for submission in this court for October 2, 1911. On September 27, 1911, plaintiff in error filed briefs in this court in said appeal, and on October 2, 1911, filed therein a contest of the motion by defendant in error to dismiss said appeal, and appeared before this court by its counsel, Joe Barwise, Esq., of the firm of Spoonts, Thompson Barwise, and John W. Veale, Esq., and argued and urged said appeal, and contested the motion by defendant in error to dismiss said appeal, and protested against this court sustaining said motion. Plaintiff in error, through its counsel, directed that no citation be issued on the filing of the petition and bond for a writ of error until a later date, and not before September 30, 1911, and no citation was issued until October 4, 1911, and no action taken in prosecution of the writ of error until an adverse decision of this court in said appeal. Wherefore the acts, conduct, and proceedings of plaintiff in error and its counsel in said appeal, after filing the petition and bond for writ of error herein was a waiver and abandonment of said writ of error until October 4, 1911, at which time 12 months had elapsed, and the right of plaintiff in error to appellate proceedings had elapsed and become barred and forfeited." Under which the following propositions are submitted: (1) "A writ of error must be sued out within 12 months from the date of the judgment, rather than from the date of the overruling the motion for a new trial." (2) "The filing of a petition and bond for writ of error, without bona fide intention of having citation issued thereon until a later date, did not interrupt the time provided by statute for suing out a writ of error." (3) "The right to procure a writ of error herein by plaintiff in error, after the abandonment of such right until after the lapse of 12 months, cannot thereafter be revived and reinstated to give the proceedings the effect from the date of filing." (4) "An appeal may be abandoned and a writ of error prosecuted within the proper time; but in this instance it appears conclusively that there was no abandonment of the appeal until after the expiration of 12 months within which a writ of error could be sued out."
The right to have the cause dismissed by the defendant in error on the grounds urged or under the record, considered as a whole, is vigorously assailed by plaintiff in error in its reply to said motion to dismiss.
To the end that what we say in disposing of the motion may be the more clearly understood, in the light of the record in this case, we think it advisable to make the following statement of the facts found by us to be fully borne out by the record, and on which we base the conclusions we announce herein:
Judgment was rendered in the district court of Potter county in this case, in favor of defendant in error against plaintiff in error, on September 24, 1910, and within the time allowed by law an appeal was prosecuted by filing and procuring to be approved in the trial court a proper supersedeas appeal bond, and a proper transcript and statement of facts were also filed within due time in the proper Court of Civil Appeals, and through a proper order, made by the Supreme Court, said cause was duly transferred to and filed in this court. Appellant, in that appeal, not having filed its briefs in the appellate court within proper time, and having failed, in the judgment of this court, to make a proper showing for having so failed, in response to a motion filed in this court in that cause, this court, on October 3, 1911, dismissed said appeal.
Before proceeding to a discussion of the questions presented by defendant in error, we call attention to the fact that the right of appeal is one guaranteed by our Constitution, and should never be denied, except under very reasonable and liberal rules and regulations which may become necessary, looking to the rights of litigants and the ends of substantial justice. Shelton v. Wade,
While article 1383, Sayles' Annotated Civil Statutes, gives the right to take a case to the appellate court by "an appeal or writ of error," and not by "an appeal and writ of error," we think it is clear that the statute was not intended to compel an election of remedies in the first instance, so as to deprive the litigant of the other remedy; and we think, until the case has been passed upon on its merits by some appellate tribunal, the litigant has the right to resort to both or either of the remedies provided for that purpose, provided, of course, he does so within the time allowed by statute and the rules of court, and not under such circumstances as will result in depriving the adversary of some right also guaranteed to him by statute or the rules. As it is shown by the record in this case that the judgment sought to be revised in this proceeding has not been passed upon on its merits by any appellate tribunal, it follows from what we have said, if the writ of error proceeding was perfected within the time and as provided by law, and the defendant in error will not be deprived of any right guaranteed to her by the statute or the rules of court, the motion to dismiss should be overruled.
Was the writ of error proceeding perfected within the time and as required by law? The judgment below was rendered on September 24, 1910, and the petition and bond in this proceeding were filed in the court below and the bond approved by the clerk thereof on September 23, 1911, being within the year provided by statute; and we think the filing of the petition and bond and the approval of the bond by the clerk had the effect of completely conferring jurisdiction on this court, as was held in Crunk v. Crunk,
Since the same case may be in the same appellate court at the same time on both a writ of error proceeding and on an appellate proceeding, as was held in the case of Smith v. Bank, 132 S.W. 527, and was in effect held by our Supreme Court, in Insurance Company v. Clancey,
Will defendant in error be deprived of any legal right guaranteed to her by the statute or by the rules of court if this motion is not sustained, and the proceeding stands for disposition in this court on its merits? She unquestionably has a right that this litigation be finally terminated at as early a date as possible, consistent with the legal and equitable rights of plaintiff in error; but if she has failed to avail herself of a right guaranteed by statute or the rules of court, which, if seasonably taken advantage of by her, would have produced a prompt and final disposition of the litigation, and her failure to make use of that statute or rule has resulted in plaintiff having a legal right it could not otherwise have exercised, she cannot now complain. Plaintiff in error in this proceeding, having failed to file its brief in the appellate proceeding within the time and as required by law and the rules *961 of court, two remedies were in that proceeding open to her; one was to have resorted to the rights guaranteed her under rule 42 for the government of our Courts of Civil Appeals (67 S.W. xvii), which was to have filed her briefs in that proceeding, and had that appeal disposed of on its merits on her briefs and the record, without appellant therein being heard or being permitted to file briefs; the other remedy was to have the appeal dismissed, as provided for in rule 39 for the government of our Courts of Civil Appeals (67 S.W. xvi).
Defendant in error herein elected to exercise the rights guaranteed to her under said rule 39, and this court in that proceeding awarded her her full rights under that rule. Had defendant in error in this proceeding resorted to the rights guaranteed her under said rule 42, no delay in a final disposition of this litigation could have resulted; but this she did not do. Having elected to insist upon her rights on that appeal, as conferred under said rule 39, and acquired them, the fact that that has resulted in plaintiff in error in this proceeding being able, under its legal rights, to insist upon this proceeding being heard in this court on its merits furnishes no just or legal cause for complaint on the part of the defendant in error, as was held, in effect, by our Supreme Court, in the case of Thompson v. Anderson,
For the reasons above stated, we think defendant in error will be deprived of no legal right as a result of the delay incident to this proceeding being heard and considered by this court on its merits; and it follows from what we have said that the motion of defendant in error to dismiss this proceeding should be, in all things, overruled, and it is so ordered.