
    Sasse v. Schmidt.
    Appeals from Justices’ Courts, pending in the District Courts at the adoption of the State Constitution, wore transferred by virtue of the second section of the thirteenth article to the District Courts of the State.
    Error from Galveston. This suit originated before a justice of the peace, and was taken by appeal to the District Court in 1845, prior to the adoption of the State Constitution. It was continued from term to term until the Spring Term, 1850, when, on motion of the defendant in error, who was the appellee in the District Court, the cause was dismissed for want of jurisdiction.
    
      II. IV. §• if. M. Potter, for plaintiff in error.
    The last clause of the second section of the thirteenth article of the Constitution of the State of Texas provides for suits depending at the time of the change of Government, and is as follows, to wit: “All suits at law and equity which may be depending in any of the courts of the Republic of Texas prior to the organization of the State Government under this Constitution shall he transferred to the proper court o£ the State which shall have jurisdiction of the subject-matter thereof.” The intention of the framers of tlie Constitution is evident from this clause taken alone, independent of any other clause of that instrument. Tlie language is “all suits,” “in any courts,” “shall be transferred,” &c. The only possible'question left for construction on this clause is as to the court in which each suit is to be lodged under the change, and arises from that part of it which provides that suits then depending “shall be transferred to tlie proper court of tlie State which shall have jnrisdiction of the subject-matter thereof.” What court, then, had jurisdiction of this cause after the change of Constitution? Certainly not the Justice’s Court, for there the matter had been determined finally, and it had no power to retry the cause. It had no “jurisdiction on the subject-matter” of this appeal, either under the old or new Constitution, and in all legal effect the appeal bad removed I lie cause from that jurisdiction as effectually thong'll it had never been pending there, and had also completely annulled or superseded the judgment. If, then, the cause could not be transferred to the Justice’s Court for trial, and it being beyond a doubt that jurisdiction had once attached in the District Court of the Republic, it must, under the change, certainly go to the District Court of the State, or else we must conclude that no resting-place can be found for it. Should the latter proposition be contended for, then what are we to do with the declaration that “all suits shall be transferred,” &c., and what would be the effect of such a construction on a host of causes? It is well known that thousands of causes were formerly taken by appeal from the Justices’ to the District Courts of the Republic, where judgments were rendered in them, and which judgments remained in full force and unsatisfied at the time of the organization of the State Government. Now, will it be said that these judgments are dead? or that because under the decision of this court in the case of Titus v. Latimer, “that the District Court of' the State had no appellate, jurisdiction,” therefore executions cannot be issued from the District Courts on those judgments? or will the equally strange proposition be made that those judgments of the District Courts are to be transferred to the Justices’ Courts, and the justices to issue executions thereon? But if (as we think must bo the case) it is conceded that executions may be issued from the District Courts of the State on judgments rendered in the District Courts of the Republic in cases taken there by appeal from Justices’ Courts, then we say that it must also be conceded that the District Court has now the power to try and determine this cause upon its merits; for the issuing of executions in those causes would be the exercise of jurisdiction of the very highest nature, and that over appeal cases, and it would apparently be a reasonable legal construction that jurisdiction to issue an execution in a certain class of eases must necessarily involve the power to render judgment in such causes. This consti notion gives effect to the whole of the clause of the Constitution before cited, and that without clashing with the case of Titus v. Lati-mer, and it is based upon the well-settled principle that in construing laws or instruments the whole act or instrument must be taken together and such construction given as will give effect to each part if it cau be done.
    
      O. G. Hartley, for defendant in error.
    The plaintiff in error argues that by reason of this being a suit pending at the time of the organization"of the State Government it comes within the second section of the, thirteenth article of the Constitution, and differs essentially from the case of Titus v. Latimer.
    The words of the Constitution are : “All suits at law and equity which may be depending in any of the courts of the, Republic of Texas prior to the organization of tlie State Government under this Constitution shall be transferred to the proper court of the State which shall have jurisdiction of the subject-matter thereof.”
    This is an enlarging provision, not a restraining one. "Without it suits could not have bepn transferred at all. The words “'to the proper court of the State which shall have jurisdiction of the subject-matter thereof” are descriptive of the court.
    There is in this class of cases no court which comes within the description.
   Lipscomb, J.

Títere is no question made about the regularity nor tlie rig-lit; to appeal from the judgment of a justice of the peace to the District Court, tinder the laws of the Republic of Texas, at the time this cause was carried by appeal to the District Court. The Constitution of the State made a provision for the exercise of the revising power on the part of (he District Court, not by an appeal, but by the use of some process issued by the District Court, or one of the judges thereof. (Titus v. Latimer, 5 Tex.' R., 433, and O’Brien v. Dunn, Id.. 570.) But it had not been supposed that there could be any doubt as to the competency of the court to retain and try all causes that had been taken into it by appeal before the adoption of the State Constitution. There was no essential change in the jurisdiction of the District Courts as they existed under the Republic and under the State Constitution. The only change that was made is in the mode of exercising the jurisdiction. It was, under the former, by an appeal; under the latter, by the issuance of a process from the court or by one of the judges. Had the Constitution made no express provision for causes already pending in the District Court, it would hardly have been presumed that it was intended that the change of Government should destroy the rights of parties already in court, when the court under its new organization liad jurisdiction of the subject-matter as amply as under'!he old.

But it is believed that it is not left to presumption. The last clause of the second section of the thirteenth article of the Constitution contains the following provision : “All suits at law and equity which may be depending in any of the courts of the Republic of Texas prior to the organization of "the State Government under this Constitution shall be transferred to the proper court of the State which shall have jurisdiction of the subject-matter thereof.” This provision ivas intended to provide for every case that should be pending in the courts when the change took place. If the Constitution had provided another jurisdiction for the trial of an appeal from a justice of the peace, the appeal pending at that time would bo sent to such tribunal for trial. But where no other had been created, and the District Court, under the new Constitution, liad jurisdiction of the subject-matter, no actual transfer would be necessary. It would be a transfer by the operation of the new organic law from the District Court of the Republic to the District Court of the State. It seems, then, that the court below erred in supposing that the District Court could not entertain jurisdiction of the case. It is a court of general jurisdiction over the subject-matter of the appeal, and was therefore the appropriate tribunal under the new Constitution for the trial thereof. The judgment of the court below dismissing the cause is reversed, and it is remanded to (lie court below.

Judgment reversed.  