Opinion
No. 885.
April 6, 1920.
Error from District Court, Orange County; W. T. Davis, Judge.
Action by Leroy Pruter against the Orange Northwestern Railway Company and another, to recover for personal injuries. Judgment for plaintiff, and defendants bring error. On motion to have transcript filed by clerk. Motion denied and dismissed.
Andrews, Streetman, Logue Mobley, of Houston, and Holland Holland, of Orange, for plaintiffs in error.
Smith Crawford, of Beaumont, and John Hancock, of Thurber, for defendant in error.
Leroy Pruter, as plaintiff, brought suit in the district court of Orange county against the Orange Northwestern Railway Company and Walker D. Hines, the latter being sued in his capacity of Director General of Railroads, to recover damages for personal injuries sustained by Pruter while the Orange Northwestern Railroad was being operated by Hines in his official capacity. The cause came on regularly for trial, and verdict and judgment was rendered in Pruter's favor for damages against both defendants in the sum of $16,500. The date of the final judgment in the court below was May 29, 1919. The defendants sought to have the judgment of the lower court reviewed in this court by suing out a writ of error, and all necessary steps to that end were taken, and said defendants would be entitled to have said judgment against them reviewed by this court, provided the writ of error was timely prosecuted by them.
The application for the writ of error and bond therefor was filed by defendants in the district court of Orange county on December 15, 1919. On the _____ day of February, 1920, the transcript and statement of facts in the cause, which had been duly prepared below, were transmitted by mail to the clerk of this court for filing, and reached his hands on the 5th day of February, 1920. It occurring to the clerk of this court that the application and bond for writ of error had not been filed within the time required by law to give this court jurisdiction of this cause, he called this court's attention to the matter, and desired to be advised as to whether he should file the transcript and statement of facts as of the date received by him, and he was advised by the members of this court that in their opinion the writ of error had not been sued out in time to give jurisdiction to this court in the matter, or to authorize the filing by him of said transcript and statement of facts, and said clerk was advised by this court to note on the transcript and statement of facts the date of their receipt by him, but not to officially file the same in this court, and to notify counsel of record for the plaintiffs in error of his actions regarding such transcript and statement of facts, all of which was done. Thereafter, on February 25, 1920, the plaintiffs in error filed a formal motion in this court, praying this court to direct and order the clerk of this court to file said transcript and statement of facts, which motion was resisted by the said Pruter.
At the time the judgment of the district court of Orange county was rendered in said cause, article 2086 of the Revised Statutes of this state was in effect, and under that article the defendants, if they desired to bring the case to this court by writ of error, had 12 months after the date of the judgment in the lower court in which to sue out a writ of error. That article, however, was amended by an act of the Thirty-Sixth Legislature of this state, and by the amending act, it was provided that writ of error, where allowed, must be sued out within six months after final judgment rendered in a cause, and not thereafter. Acts 36th Legislature, c. 85, p. 136. This act was approved April 19, 1919, and went into effect on June 19, 1919. It is the contention of counsel for the motion in this case that the act of the Thirty-Sixth Legislature, amending article 2086, did not have reference to judgments which had been rendered prior to said amendment, but that if mistaken in that contention, then the Legislature, in passing the amendatory act, intended that as to all judgments rendered prior to the amendment the parties thereto should have six months after the amendatory act became effective in which to sue out a writ of error. We cannot agree with either contention, but think the conclusion is irresistible that application and bond for the writ of error in this instance came too late to confer jurisdiction upon this court, basing our holding to that effect on the decision of the Supreme Court of this state in the case of Odum et al. v. Garner et al., 86 Tex. 374, 25 S.W. 18. See, also, Gautier v. Franklin, 1 Tex. 732.
Being clearly of the opinion, as we are, that this court, for the lack of jurisdiction, would be compelled to dismiss the application for writ of error, had the transcript and statement of facts been filed in this court by the clerk, it seems to us that we could not consistently order him to file the transcript and statement of facts, and thereafter order a dismissal for want of jurisdiction to entertain the writ. The motion will therefore be denied and dismissed; and it is so ordered.