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Attorney(S)

A. G. Walker, for appellants. Shropshire Hughes, for appellees.

Judges

KEY, C.J.

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Smart Summary

Case Summary: Brown et al. v. Allen et al.

Court:

Court of Civil Appeals of Texas

Date:

March 1, 1911

Judicial Author:

Chief Justice Key

Origin:

Appeal from McCulloch County Court (Harvey Walker, Judge)

Factual and Procedural Background

This action arose between C. V. Brown and another (appellants) and C. D. Allen and another (appellees). A judgment was rendered in the McCulloch County Court in favor of appellees. The judgment was rendered and notice of appeal was given on October 18, 1909. The county court adjourned for the term on November 4, 1909. The appellants filed an appeal, but their appeal bond (required by law) was approved and filed on December 1, 1909. Appellees moved to dismiss the appeal on the ground that the appeal bond was not filed within the time required by law. This Court sustained appellees' motion to dismiss and overruled appellants' motion for rehearing; the opinion explains the reasons for the dismissal.

Legal Issues Presented

Whether the appeal bond was filed within the time required by Article 1387 of the Revised Statutes of 1895.
Whether the McCulloch County Court's term was authorized to continue more than eight weeks (which affects whether the time for filing the bond is measured from notice of appeal and whether a nonresident appellant is entitled to 30 days instead of 20).
Whether the statute (Article 1387) must be construed to allow all nonresident appellants 30 days to file an appeal bond regardless of the length of the court term.

Arguments of the Parties

Appellants' Arguments

They contended that no order of the commissioners' court authorized the county court to remain in session longer than three weeks, and they filed a copy of a 1907 commissioners' court order changing the times of the four terms of the county court, which they argued did not permit sessions exceeding three weeks.
They asserted that the statute should be construed to allow a nonresident appellant 30 days to file an appeal bond regardless of how long the term of the court may last.

Appellees' Arguments

The motion to dismiss was predicated on the assertion that the appeal bond was not filed within the time required by law; implicitly, this assumes that the county court might have been authorized to continue in session more than eight weeks (which would have made the relevant filing period begin at the time notice of appeal was given and would afford a nonresident 30 days).
Because the appeal bond was filed on December 1, 1909, appellees argued it was untimely under the governing statute.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis focused on the timing requirements of Article 1387 of the Revised Statutes of 1895 and the statutory distinction introduced by the 1892 amendment.

Statutory Text: The court quoted Article 1387, which (in effect) provides that an appeal may be taken during the term by giving notice in open court and by filing an appeal bond (where required) within twenty days after the expiration of the term; but if the term of the court by law may continue more than eight weeks, the bond or affidavit must be filed within twenty days after notice of appeal is given for residents of the county and within thirty days if the appellant resides out of the county.
Two Possible Timelines: The court observed two alternative factual/legal scenarios:
- If the county court was authorized to remain in session more than eight weeks, then the time for filing for a nonresident appellant would be 30 days after notice of appeal was given (notice given October 18, 1909), and the bond filed December 1, 1909 would be untimely.
- If the county court was not authorized to remain in session more than eight weeks, then the time for filing would be 20 days after the court adjourned for the term (adjournment November 4, 1909), and the bond filed December 1, 1909 would also be untimely.
On the commissioners' court order: Although appellants presented a 1907 order of the commissioners' court altering term times and argued it did not authorize sessions exceeding three weeks, the court declined to construe that order because it was unnecessary to the disposition. The court explained that regardless of how that order might be construed, the bond was not timely under either statutory measurement.
Statutory Purpose and Construction: The court reviewed the legislative history reflected in the 1892 amendment, observing that the amendment created the extra temporal rule (measuring time from notice where a court's term may continue more than eight weeks) to insure appeals are perfected within a reasonable time and to allow nonresidents in that specified class more time (30 days) than residents (20 days). The court emphasized that the 30-day allowance is expressly limited by the statute to those cases where time is to be reckoned from notice of appeal (i.e., where the court's term may continue more than eight weeks), and the Legislature may lawfully make such a distinction. Although the statute is remedial and generally construed liberally, the court found the statutory language in this respect clear and unambiguous, requiring no further judicial construction or expansion of the 30-day allowance to other nonresident appellants.
Conclusion of Analysis: Because the appeal bond was filed on December 1, 1909, and was therefore not filed within either 30 days from notice (if the >8-week rule applied) or within 20 days after adjournment (if the >8-week rule did not apply), the court concluded the bond was not filed within the time prescribed by law.

Holding and Implications

APPEAL DISMISSED

Holding: The court held that the appeal bond in this case was not filed within the time prescribed by Article 1387 of the Revised Statutes of 1895, and accordingly the appeal was dismissed.

Implications: The direct consequence is the dismissal of appellants' appeal for failure to timely file the appeal bond. The opinion explains and applies the statutory schedule for filing appeal bonds and rejects the appellants' broader construction that would afford all nonresidents 30 days irrespective of the statutory condition tied to court terms exceeding eight weeks. The opinion does not announce or rely upon any judicial precedent beyond the statute itself, and it notes the statute's language is clear and unambiguous in the respects discussed.

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BROWN et al. v. ALLEN et al.

KEY, C.J.

Having heretofore sustained appellees' motion to dismiss the appeal in this case, and overruled appellants' motion for a rehearing, we now comply with appellants' request and state the reason why the motion to dismiss was sustained. That motion was predicated upon the fact that the appeal bond was not filed within the time required by law. The judgment was rendered and notice of appeal given on the 18th day of October, 1909, and the court adjourned for the term on the 4th day of November, 1909, and the appeal bond was approved and filed on the 1st day of December, 1909.

Article 1387 of the Revised Statutes of 1895 reads as follows: "An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered, by the appellants giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. If the term of the court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days if he resides out of the county,"

The motion to dismiss seems to assume that the county court of McCulloch county, wherein the judgment was rendered, might have continued in session more than eight weeks. Counsel for appellants controvert that proposition and contend that no order of the commissioners' court had been made, authorizing the county court of that county to remain in session longer than three weeks, and they have filed in this court a copy of an order of the commissioners' court made in 1907, changing the time of the four terms of the county court of that county, which counsel contend does not authorize the county court to remain in session longer than three weeks. We have not found it necessary to construe that order and determine its meaning in that regard. If it authorized the county court to remain in session more than eight weeks, then, although appellant is a nonresident of the county, the appeal bond was not filed in time, because it was not filed within 30 days after notice of appeal was given. On the other hand, if the order referred to did not authorize the county court to remain in session eight weeks, then the appeal bond should have been filed within 20 days after the court adjourned for the term, which was not done.

We note appellants' contention that the statute should be so construed as to allow a nonresident 30 days in which to file an appeal bond, regardless of how long the term of the court may last, but we cannot sanction that contention. In 1892 the statute quoted was amended by adding the provision requiring appeal bonds to be filed within a specified period after notice of appeal was given in a certain class of cases. The class of cases specified are those where judgment had been rendered by a court which might remain in session more than eight weeks. The purpose of that amendment was to require a party who had given notice of appeal to perfect such appeal within a reasonable time, or submit to the enforcement of the judgment. And inasmuch as prior to that time all appellants had been allowed 20 days after the final adjournment of the court in which to perfect their appeals, and as the amendment referred to very materially curtailed the time within which a certain class of litigants would be required to perfect their appeals, the Legislature deemed it wise and proper to allow that class of litigants who were nonresidents of the county more time than was allowed to those who resided in the county, and for that reason the former were allowed 30 days within which to file an appeal bond. It may be true, as contended on behalf of appellants, that as much reason exists for allowing all nonresident litigants more time to perfect an appeal, regardless of how long the term of the court may last; but the Legislature had the power to discriminate and accord that favor to one class of nonresident litigants, and not accord it to another class, and by the plain language of the statute under consideration that discrimination has been made. The extension of the time from 20 to 30 days within which to file an appeal bond is manifestly limited, by the very terms of the statute, to the class of cases where the time allowed is to be reckoned from the time when notice of appeal is given; and it would seem to be judicial legislation to hold that it was intended that such additional time should also be extended to all other nonresident litigants. It may be conceded that this is a remedial statute, and should be liberally construed wherever there may be reasonable room for doubt as to its meaning; yet, as to the question now under consideration, it is so clear and unambiguous as to require no construction.

Hence we have held and still hold that the appeal bond in this case was not filed within the time prescribed by law.

BROWN v. ALLEN