
    JOWELL v. COFFEE.
    (Court of Civil Appeals of Texas.
    Oct. 29, 1910.)
    1. Courts (§ 64) — Special Terms — Statutes —Repeal.
    Rev. St. 1895, art. 1114, authorizes the district judge, whenever it is necessary to hold a special term, to enter an order to that effect upon the minutes of a regular term, and appoint therein the time for holding the special term, stating the time deemed necessary for the holding of such term. Article 1115 requires the clerk, upon such an order being entered, to issue six notices containing a copy of the order, the name, style, and number of each -case which will be up for disposition at the ■special term, and article 1116 requires the sheriff to post copies of such notice at six public ■places in the county, and return the original with his return, which notice and return shall ¡be entered in the minutes. Chapter 4 (articles 1111-1119) was amended by Acts 29th Leg. T905, c. 83, and section 1 of the amending act -authorizes the holding of a special term whenever the district judge deems it advisable. Section 2 authorizes him to convene such special term at any time fixed by him, and to appoint .jury commissioners to draw grand and1 petit .jurors, etc. Section 3 requires any grand jury so selected to proceed as at a regular term. Section 4 permits one indicted by a grand jury im-■pane'Ied at a special term, to be tried at such term, and section 5 provides that nothing herein shall 'repeal any part of chapter 4, tit. '28, except so far as inconsistent therewith. Held, that articles 1114, 1115, and 1116 were -not inconsistent with the amending act, and ¡hence were not repealed thereby.
    ![Ed. Note. — For other cases, see Courts, Dec. Dig. § 64.}
    2. Courts (§ 64) — Judgment (§ 11) — Special Teem — Organization — Compliance with Statute — Eeeect op Noncompliance.
    Where the order of a district judge convening a special term of court did not state the 'length of time deemed necessary for the holding of such special term, as required by Rev. St. 1895, art. 1114, and no notices of such special ■term were issued by the clerk and posted by •the Sheriff, as required by articles 1115 and 1116, the district judge had no authority to 'hold such special term, so that a judgment rendered thereat was invalid.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 218-229; Dec. Dig. § 64; Judgment, Dec. Dig. § 11.]
    Appeal from District Court, Swisher County ; L. S. Kinder, Judge.
    Action by D. M. Coffee against Gid Jowell. From a judgment for plaintiff, defendant ap■peals.
    Reversed and remanded.
    Randolph & Randolph and Martin & Zimmerman, for appellant. L. W. Dalton, Hen-, •drix & Smith, and Theodore Mack, for ap-pellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DUNKLIN, J.

The judgment from which •.this appeal is prosecuted was rendered on September 27, 1909, at a special term of the district court of Swisher county. This special term was convened pursuant to an order dated September 17, 1909, made by the district judge, reading as follows: “The state of Texas, county of Swisher. September 17th, 1909, August term of the district court of said county, 1909. It appearing to the court that there will not be sufficient time at this term of the court to try certain causes now pending in the court for the fact that this term of court under the law ends Sept. 18th, 1909, and as a matter of right and justice these causes should not be continued for six months, or until the next regular term of court. It therefore being deemed advisable that a special term of this district court of this county be held for the purpose of disposing of certain cases and business now pending on the docket of this court. It is therefore ordered that said special term be called to convene and commence on Sept. 27th, 1909. It is ordered that the following causes, to wit, D. M. Coffee v. Gid Jowell, No. 676; J. T. Lemmon v. T. B. Bond, No. 540, be and are hereby set for said special term for trial. It being shown to the court that all the parties plaintiff and defendant and their counsel in said causes are in open court and are fully advised of this special term, there will be no notices served on them by the clerk of this special term, and such other' business as may be necessary will be disposed of at said special term.”

Chapter 4, tit. 28, of the Revised Statutes of 1895, provides for the holding of special terms of district courts, and the following three articles appear in that chapter:

“Art. 1114. Whenever it may become necessary, in the opinion of the district judge, to hold a special term in any county in his district, he shall cause to be entered an order to that effect upon the minutes of a regular term of the court held in said county, and in said order shall appoint the time for the holding of such special term at a day not less than thirty days after the adjournment of the regular term at which such order is entered, which order shall state the length of time deemed necessary for the holding of such special term.

“Art. 1115. Upon the order provided for in the foregoing article being entered, the clerk of the district court of such county shall issue six notices containing a copy of order of the court as entered, and also the name, style and number of each case appearing upon the docket of said court which will be before the court for disposition at such special term, which notice and copies shall be under seal of the court.

“Art. 1116. The sheriff shall .post the true copies of said notice at six public places in-such county, one of which shall be at the courthouse door, and shall return the original notice to the special term, with his re■turn thereon, stating the manner in which he has executed the same, which notice and return shall he entered in full in the minutes of the court.”

By the act of the twenty-ninth Legislature, 1905, p. 116, the law for holding special terms of the district court was amended in the following. language:

“Section 1. Where it may become advisable in the opinion of the judge of the district in which any county in the state of Texas may be situated, to hold a special term or terms of the district courts therein, such special term or terms may be held.

• “Sec. 2. The judge of the district in which a county may be situated, in which it is deemed advisable by such judge that a special term of the courts should be held, may convene such special term of the courts at any time which may be fixed by him. The said judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law; said jurors may be summoned to appear before said courts at such time as may be designated by the judge thereof; provided, that in the discretion of the judge, a grand jury need not be drawn or impaneled.

“See. 3. The grand jury selected as provided for in the preceding section shall be duly impaneled and proceed to the discharge of its duties as at a regular term of the court.

“Sec. 4. Any person indicted by the grand jury impaneled ata special term of the courts may be placed upon trial at said special term.

“Sec. 5. Nothing herein contained shall be held to repeal any part of the provisions of chapter 4 of title 28, in the Revised Civil Statutes of Texas, except so far as the same may be inconsistent with the provisions in this act.”

It will be noted that in article 1114 of the Revised Civil Statutes copied above it is required that the order of the district judge, convening a special term of court, "shall state the length of time deemed necessary for the holding of such special term,” and by articles 1115 and 1116 notices of such special terms are required to be issued by the clerfc and posted by the sheriff. These provisions of the old law are not inconsistent with any of the terms of the amendment, and, therefore, are in full force. It will be noted that the order of the district judge convening the special term at which this case was tried did not contain a statement of the length of time which the judge deemed necessary for the holding of the special term, and it is also shown by the record that the requirements for the issuance and service of the notices provided in articles 1115 and 1116 were not complied with.'

The Legislature having provided the steps necessary for the holding of a special term of court, the district judge was without lawful authority to hold such a term without complying with the preliminaries prescribed, and by reason of the failure to comply with the requirements of the statute in the particulars noted above, the judgment was invalid. Cyc., vol. 11, pages 727, 728, and 731, and authorities therein cited.

Other errors assigned will not be discussed.

Reversed and remanded.  