PHIL H. PIERCE CO. v. WATKINS, District Judge, et al., 263 S.W. 905

PIERSON, J. On June 28, 1923, in the district court of the Ninty-Fifth judicial district of Texas, of which court the Honorable Royal R. Watkins is the judge, judgment was entered in cause No. 47006 in favor of relator Phil H. Pierce Company against respondent Popular Amusement Company. Thereafter, on the 16th day of August, 1923, respondent Popular Amusement Company filed in said court a motion for a new trial, praying that the judgment rendered on June 28th be set aside and held for naught.

In its said motion it alleged that the judgment purports to be one by default, that before judgment was taken it had filed its answer, that it had no notice of the setting of the case, and “that it has a meritorious defense to said suit.” The answer of respondent Popular Amusement Company, referred to by it, consisted of a general demurrer and a general denial. Its motion for a new trial alleged that it had a meritorious defense, but did not set out the character or nature of its defense. Relator Phil H. Pierce Company resisted the motion for a new trial, primarily upon the ground that under

chapter 105, General Laws of the Thirty-Eighth Legislature, which act by its terms went into effect July 1, 1923, the judgment had become final, and that respondent Ayatkins was without authority to grant a new trial or to set said judgment aside. The Ninety-Fifth district court comes within the terms and provisions of

chapter 105, General Laws of the Thirty-Eighth Legislature, which regulate the practice and procedure “in civil district courts in counties having two or more district courts with civil jurisdiction only, and whose terms continue for three months or longer.” On August 27th, and before the term of court had ended under limitation of law, respondent Watkins entered his order granting a new trial and setting aside the judgment. Relator Phil H. Pierce Company brought this action praying that a writ of mandamus issue commanding respondent Watkins to vacate his said order granting a new trial and directing him to give effect to said judgment. The part of

chapter 105 which affects the rules of procedure applicable to this case is found in subdivisions 15 and 16 thereof. They read as follows: “Subd. 15. A motion for new trial, where required, shall be filed within ten days after the judgment is rendered or other order complained of is entered, and may be amended by leave of court at any time within twenty days after it is filed before it is acted on. “Subd. 16. Judgments of such civil district courts shall become as final after the expiration of thirty days after the date of judgment or after a motion for new trial is overruled as if the term of court had expired.

After the expiration of thirty days from the date the judgment is rendered or motion for new trial is overruled the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other district courts.” Subdivision 19 provides': “All inconsistent laws and rules of practice and procedure shall be inoperative in. tlíé civil .district courts of the class included within, this act.”

Section 2 of th£ act reads: “This act shall take effect and be in force on and after the first day of July, 1923.” As no motion for a new trial was filed within the time prescribed by

chapter 105, and thirty days having expired before the court vacated and set, aside the judgment, the judgment was final under the provisions of

chapter 105. If said statute is a valid and constitutional enactment, and if its terms apply to this judgment, relator is entitled to the writ. Under the provisons of

chapter 105 a motion for new trial filed more than 30 days after the entry of a judgment would be as one filed after the term of court had expired.. The ^nly remedy would be, as in similar cases ’and as provided by said chapter, by a bill of review. We will first give consideration to the defense of. respondent Popular Amusement Company that

chapter 105 is unconstitutional and void, because violative of

article 3, § 56, of the Constitution of the state of Texas, wherein it provides: “The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law * * * regulating the practice or jurisdiction of * * * any judicial proceeding or inquiry before courts * * * or other tribunals. * * * And in all other cases where a general law can be made applicable, no local or special law shall be enacted.” The Constitution does not prohibit the regulation of the practice or jurisdiction of judicial proceedings ior inquiries before courts by a general law; neither does it require that the practice and procedure shall be the same and uniform in all judicial tribunals.

It declares only that the Legislature shall not regulate them by local or special law.

Chapter 105, General Laws of the Thirtyr Eighth Legislature, under its terms and under the well-recognized rules of law is not a special or local law. Its introductory paragraph provides: “Article 1969a. The following rules of practice and procedure shall govern and be followed in the civil, district courts in counties having two or more district courts with civil jurisdiction only, and whose terms continue for 'three months or longer.” That the Legislature has the power and authority to classify subjects, and that an enactment that applies to such subjects as a class is a general law, is, well recognized.

It has been held by this court in a number of cases that a law is general if it apply uniformly to all of a class. Clark, Sheriff, v. Finley, Comptroller, 93 Tex. 171, 54 S. W. 343; Reed v. Rogan, 94 Tex. 177, 59 S. W. 255; Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Beyman v. Black, 47 Tex. 558. For a law to be general it is not' necessáry that it apply to all persons or things alike. Indeed, as said by Chief Justice Gaines in Clark, Sheriff, y.

Finley, Comptroller, supra, “most o’f our laws apply to some one or more classes of persons or of things and exclude all others.” He quoted with approval the following definition by the Supreme Court of Pennsylvania in the case of Wheeler v.

Philadelphia, 77 Pa. 338: “Without entering at large upon the discussion of what is here meant by a ‘local or spe- ■ cial law,’ it is sufficient to say 'that a statute which relates to persons or things as a class is a general law, while a statute' which relates to particular persons or things of a class is special, and comes within the constitutional prohibition.” Bouvier’s Law Dictionary, vol. 2, p. 1347, defines general laws as follows: “Laws which apply to and operate uniformly upon all members of any class of persons, places, or things, requiring- legislation peculiar to themselves in matters covered by the laws.

Binney, Restrictions upon Local and Special Legislation, quoted in Com. v. State Treasurer, 29 Pa. Co. Ct. R. 578. “Statutes which relate to persons and things as a class. Wheeler v. Philadelphia, 77 Pa. 348. Laws that are framed in general terms, restricted to- no locality, and operating equally upon all of a group of objects which, having regard to the purpose of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves.” For

definitions and many citations see Words & Phrases, vol. 2, pp. 716 to 720; Abbott’s Law Dictionary, vol. 2, p. 14; Black’s Law Dictionary (2 Ed.) pp. 537 and 701. It is not asserted that the classification in this instance is a fictitious one. That it is a bona fide classification, based upon facts and real conditions, is apparent in its terms, and supported by the fact that it applies and is operative over a number of civil district courts in many of the large counties of the state.

The law is a valid exercise of legislative authority, and well designed to have a wholesome effect upon the dispatch and finality of litigation in the courts in our congested centers. Legislative prerogative has always extended to fixing the time when judgments become final and the time when the necessary steps in the procedure must be taken. While the act is a departure from the former regulations respecting motions for new trial, when the judgment becomes final, and other matters of procedure, yet its terms are reasonable and generous.

Instead of two days, as heretofore allowed, ten days are allowed in which a motion for new trial may be filed. It may be amended within twenty days after it is filed. The judgment does not become final until after the expiration of thirty days from the date of the judgment, or after a motion for new trial was overruled, at which time the term of court is at an end as far as the.immediate case'is concerned. There are many terms of court in this state which extend only two weeks, some three weeks.

When the court adjourns, or when the term expires by operation of law, judgments becom^ final and can be set aside or reopened only by a suit for that purpose. Respondent Popular Amusement Company presents that

chapter 105 became effective July 1, 1923, two days after the judgment herein was rendered, and that it does not apply to this judgment; that .to so apply it would make it retroactive. This is a procedural statute.

It is the settled law that a litigant has no vested right in a. remedy, and that remedial statutes are valid and control the litigation from the date they become a law, and all proceedings taken thereafter must be under the new law. “It is competent for the Legislature to 'deprive the courts of their powers under existing law to modify or vacate judgments rendered prior to the passage of the act.” 12 Corpus Juris, p. 984; Bagby v. Champ, 83 Ky. 13. It was said by Chief Justice Willie in the case of Collins v.

Warren, 63 Tex. 314: “The repeal of a statute leaves unaffected all rights in the nature of contract which have vested under the original statute. Sedgw. Const. & Stat. Law, 113. As to the effect of such repeal upon remedies existing under the former law, some difference of opinion has existed,' but the weight of 'authority seems to be that, without some saving clause contained in the repealing law, remedies existing under the former statute must give way to. those provided by' the new one.

The new law cannot take away all remedies previously existing, but must leave a substantial one according to the course of justice. Dwarris on Statutes, 474; Cooley on Lim. 289.”

Chapter 105 was approved March 21, 1923, and its

section 2‘ provides that it shall take effect and be in force on and after July 1, 1923, three months and eleven days after it was passed. As was suggested by Judge Brown in Odum v. Garner, 86 Tex. 377, 25 S. W. 18, doubtless the time when the act should take effect was postponed so as to give opx'ortunity to file motions in cases wherein judgments had been rendered, as well as for other reasons. Eaton v. Supervisors, 40 Wis. 668.

Respondent Popular Amusement Company could have filed its motion for new trial within two d,ays, as provided under the'old law, or within ten days after judgment under the new, and the court could have vacated the judgment at any time before it became final within thirty days. Under the. law as it existed before this statute went into effect, this judgment so rendered would have become final upon the termination of the term of court, either by its expiration under the law or by final adjournment.

If the term had ended by adjournment at any time after the rendition of the judgment, this judgment would have become final. It is no less final upon the end of the term for this case under the terms of the new statute. The only legal way to review it is the way provided by this statute, and which would be the way in the absence of the statutory provision after the judgment had become final; that is, by bill of review for sufficient cause, filed within the time allowed by law for the filing o'f bills of review. The act here operated prospectively.

Its provisions had no effect upon the action of the court in entering the judgment. It applied only to future acts of the court in reference to the judgment, and as to when the court’s control over it should cease. No motion for new trial was filed under the old or the new statute, and the judgment became final as if the term of court was at an end.

If there was a hardship placed upon respondent Popular Amusement Company, it was not because of the statute'changing the time when judgments in these courts should become final, but because of the alleged wrongs in entering the judgment, and perhaps in respondent’s not discovering it until after it had become final under the statute. Respondent Popular Amusement Company’s motion for a new trial in the district court failed to contain some of the essential elements ndcessary to constitute it a bill of review. No defense to relator’s claim was pleaded.

It alleged that it had a meritorious defense, hut its nature and character was not set out. The motion lacked this essential, and cannot be considered as a bill of review. The other issues 'raised by respondent have been considered, and are deemed to be without merit. The writ is granted. <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes