
    Burr and others v. Lewis.
    To constitute an appeal the appellant must give notice of appeal during the term, and within twenty days after the term give bond for the prosecution of the appeal. If both requisites are not complied with, the jurisdiction of the Supreme Court does not attach. (No tel 2 )
    Where time is to be computed from or after a certain day, or from an act doue, the day on which the act is donemusv bo excluded, unless it appear that a different computation was intended.
    The Supreme Court cannot entertain an application for a rehearing made at a term subsequent to that at which the judgment was entered. But this limitation upon (he power of the court will not prevont the correction of the cleriea. errors or mistakes, or defects of form, or the addition of such clause as may b ' necessary to carry out the judgment of the court, nor restrain the court from pronouncing null and void a judgment which was rendered • in a caso not legally before (he court.
    An application for a rehearing need not be disposed of during the term at which it was made; it may bo continued from term to term and be subsequently considered.
    The transcript of the record, on appeal, should contain the order of adjournment of the term at which final judgment was rendered, in order (hat it may appear whether the appeal bond has been filed intime to porf* et (lie appeal; and where it is omitted (he regular course would be to move for a cerfiorari; but where the transcript is filed by the appellee with a motion to affirm without reference to the merits, it is competent to show the fact by the independent certificate of the fact by the clerk of the court below.
    Courts, in the construction of their own rules of practice, generally exclude Sunday in the computation of time. But where a statute directs that an act shall be done within a certain number of days, Sunday cannot be excluded, although it should be the last day. Thus where the last day of the twenty days allowed to file an appeal bond fell on a Sunday, and the bond was filed on Monday, the next day, it was not in time.
    Where a party, having given notice of appeal, filed an appeal bond which was approved, the appellee having taken up the record and asked an affirmance without reference to the merits: Held, That the appellant was not estopped from showing that the appeal bond was not filed wkhin twenty days after the term.
    Appeal from Galveston. The appellee recovered judgment against tlie appellants at the Spring Term, 1849, of the Galveston District Court.
    
      The defendants below gave notice of appeal, and on the 6th day of An-¿list next after the term of the court at which judgment was rendered filed their appeal bond, which was approved by the, clerk. After the expiration of thirty days from the commencement of the last term of this court, it being the return term of the appeal, and the appellants having failed to lile a copy of the record, the appellee filed the transcript, and obtained an affirmance of judgment without reference to the merits in accordance with the provision of the act of 1S48, chap. 76, sec. 4. Subsequently during the term the appellants made their application for a rehearing and to set aside the judgment, aud filed, in support of their application, the certificate of the clerk of, the District Court and the affidavit of a witness to the fact that that court adjourned its session on the 16th day of July, 1849. This application was continued by order of the court.
    After the adjournment of the court the mandate was issued to enforce the judgment of affirmance. And now at this term, the application for a rehearing not having been disposed of, the appellants moved the court to revoke the mandate as having been improvidently issued. The present motion and the application for a rehearing were argued together.
    
      Harris'Sf Pease, for appellants.
    Bor the appellants it is contended in support of their motion that this court has no jurisdiction over the case unless it was in such a situation that it might have been tried in this court on the merits if the transcript had been filed in time, for if the appellee could have had the appeal dismissed for want of jurisdiction had the transcript been brought up by the appellants, then he cannot have an affirmance of the judgment. The rules of this court do not require the transcript of the record to state at wliat time the court below adjourned, and it does not so state, but the affidavit that is tiled with the motion proves that the term at which the original judgment was rendered was adjourned on the 16th day of July, 1849. Exclude the day of adjournment from the computation and the twenty days after the term of. the court expired at the close of the day on the 5th of August, 1849. The appeal bond in this case was filed on the 6th of August, one day too late. The section before quoted says that the bond shall bo filed within twenty days after the term.” It would not be contended for one moment that this bond was filed in time if it had not been filed until the 10th of August, and certainly it ought not to make any difference whether it was filed one day too late or five ¿lays .too late.
    It may be contended by the appellee that'because the 5th day of August was Sunday the appellants could have filed their bond on the 6th, which was Monday. But the construction that has been given to statutes in similar cases in ot her States will not sustain this position.
    In Massachusetts, where they have a statute that the_ lien created by an attachment shall continue for thirty days after the rendition of judgment, it has been decided that “ when the thirielh day after the rendition of judgment falls on Sunday, the lien on attached property is not therefore extended to Monday.” (13 Mass. R., 225.) •
    In the same State it has also been decided that “when the time limited for a particular purpose'by a statute must necessarily iuclude one or more Sundays, they are to be included in the enumeration, unless expressly excluded, or tlie intention of the Legislature to exclude them is manifest.” (4 Pick. R., 354.)
    • On this ground the appeal would have been dismissed by the court upon the motion of the appellee if the transcript had been filed in time by the appellants. This court will not therefore pass over the defect and allow the appel-lee. to have his judgment affirmed without reference to the merits when the appellants could not have had a trial on the merits if the case had been brought here in time by them.
    
      
      Allen %• Hale, for appellee.
    I. The conrt of appeals cannot correct its own judgment of a former term. (Scrag-gin v. Scrag-gin, 1 J.J. Marsh. R., 335; Sheperd v. McIntyre, 4 Id., 112; Bradford v. Patterson, 1 Marsh. It., 464; Rajnsmu- v. Ropes. 7 Irecl. K., 740; Bramlett v. Pulcott, 2 A. K. Marsh. It., 11; Burch v. Scott, 1 Bland, 120; Ashley v. Glasgow, 7 Mo. It., 321; Ludlow v. Bank of Missouri. 4 Id.. 228 ; Ashley v. May, 5 Pike R., 408; Lambert v. Whitney, 3 Scam. It., 170; Hudson v. Gnestier, 7 Cr. R., 1.)
    IL The statute requires the clerk to issue the mandate, and (he same was .issued in conformity with law. (Acts of 1S4C, p. 2.13, sec. 13; Acts of 1848, p 73, sec. 2.)
    III. The appeal bond was filed within the time prescribed by the statute.
    1st, “Ail award filed on the 2G!h of Fein nary. In a leap year, 1im 17th m March falling on Sunday : Held, That the plaint ill' might enter his appeal on the 18th of March; and the statute of 21 Hen. Ill does not prevent.” (Marker v. Addis, 4 Burr. R., 515.)
    2d. When the 20th clay of a rule, to plead happens on Sunday, the defendant lias the whole of the next day to plead in. And generally the construction of the court, .in respect to time for pleading- and other matters of practice, is well settled that, if tlie last day fall on Sunday the party lias the whole of the next clay to perform the act required. (Borst, v. Gridin. 5 Wend. R., 84; Cock v. Bunn,-<5 Johns. R., 326; Anonymous, 1 Straf., 88; Bullock v. Lincoln, 2 Slraf., 914; Stndley v. Stuart, Id., 782; Lee v. Carlton, 3 T. R., C42; Soloman v. Freeman, 4 Id., 557; Ilarbon v. Perigal, 5 Id.. 210 ; Asinnole v. Goodwin, 2 Salk. R., 024; Shad well v. Angil, 1 Burr. R., 50 ; Goswillcr’s Case, 3 Penn. R., 200: Simms v. Hampton, 1 Segr. R., 59.)
    3d. When In a statute time is computed from an act done, the first day is excluded. (Homan u. Liswell, 6 Cow. R., 639; Ex parte Dean, 2 Id., 605; Bigelow v. Wilson, 1 Pick. R., 4S5; Portland Bank v. Maine Bank, 2 Mass. It., 204; Presbroy v. Williams, 15 Id., 193.)
    4th. Appellant cannot object to the mode of bringing' up his appeal. If an appeal is not brought up in time, an affirmance of judgment cannot be set aside nor cause shown for a new trial. (Anderson v. Anderson, 4 Hay. R., 250; Marro. Bed, 1 Overt. R. 368; Stuart v. Pasmore, 5 Hay. R., 30.) '
    4th. The term of the District Court at which tlie judgment was pronounced was not limited. The transcript does not slate the time of adjournment. The appeal bond appears by the transcript to have been filed within the time proscribed by law for tlie term. The appeal, as appears by the record, was perfected in proper time. The general order of adjournment forms no part of the record of this cause in the District Court. Mo diminution is suggested.
    The. court cannot notice the copy of the order filed by tlie appellants without a palpable violation of a well-established rule, viz :
    “The conrt of appeals in deciding on an appeal are not at liberty to travel out of the record, uor to notice any fact not therein stated.” (Maliony v. Ash-ton, 4 liar. & McH. R., 295; State v. Calboon, 1 Dev. & Bat. It., 374.)
   Wiieeler, J.

This conrt can acquire jurisdiction of causes only by one of two modes: by appeal or writ of error; and where the former mode is resorted to tlie jurisdiction of the court can attach only when the appeal is perfected.

To constitute an appeal perfected, the appellant must give notice of appeal during tlie term, and within twenty days after the term he must give bond for the prosecution of the appeal. (Hart. Dig., secs. 789, S19.) Until these two constituents of ail appeal concur there is no appeal. Neil her of itself Is sufficient. And although notice be given, until the bond is also given the appeal is incomplete and ineffectual, aiid the jurisdiction of the appellate court does not attach. This seems clear upon principle, and it lias been expressly decided. Iu Mississippi it is held that the filing of an appeal bond is a condition precedent to the jurisdiction of tlie appellate court. (1 S. & M. R., 657.) And in tlie court of appeals of Kentucky, if tlie appeal bond be not given in time tlie appeal is treated as a nullity and stricken from tlie docket. (7 Mon. R., 118; Id., 114; 1 Da. R., 589.)

It appears from the certificate of tlie clerk that the term of tlie District Court at which the judgment in this case was rendered closed on the 16f.li day of July, 1849, and the appeal bond was given and approved on the Gtli day of August next thereafter. The statute, as we have seen, requires that tlie appeal bond be given within twenty days after tlie term of tlie court at which the judgment was rendered.

It is a well-settled rule respecting the computation of time that where it is to be computed from or after a certain day from an act done, the day on which Lie act is done is to be excluded iu (be computation unless it, appear that a different computation was intended. (1 Rick. R., 485 ; 1 Tex. R., 107.)

By applying this rule to tlie present case, the twenty daj-s allowed for giving tlie appeal bond expired on the 5th day of August, and the appeal wi'is not perfected by giving a bond within the time prescribed. This court did not therefore acquire jurisdiction of tlie case ; its judgment was a nullify ; and tlie application to set it aside and revoke tlie mandate ought ío be granted, unless for some one of the causes urged in opposition to the motion, which, therefore, it becomes material to consider.

And can we, at this term, entertain the application to reconsider a judgment rendered at the last term of this court?

In the ease of Chambers v. Hodges (3 Tex. R., 517) this court refused to entertain an application for a rehearing made at a terra subsequent to that at which the judgment was rendered. It is there said that “courts of dernier ressort have no power to revise and alter materially their judgments rendered at a previous term;” but that “this limitation upon the power of tlie court will not prevent the correction of clerical errors or mistakes or defects of form, or tlie addition of such clause as maybe necessary to carry out the judgment of tlie court, or to declare a judgment null and void which was rendered in a case not- legally before the court.”

The application in that ease was not made during tlie term at which the judgment was rendered. Here it was so made and continued’ by order of tlie court-, and it lias been tlie practice of the court., where tlie application was made during the term and continued, to consider and act upon it at the succeeding term.' Tlie act of continuing the application implies, indeed, that it will be subsequently considered.

But if the case was not legally befrfre ns at the last term when the judgment was rendered, it is immaterial at what term tlie application was made; for if tlie judgment he a nullity, it may be so declared upon a motion made at a subsequent term. Tlie case Ex parte Crenshaw, decided by the Supreme Court of the United States, is iu point.

Ail appeal had been prosecuted, and, the appellee not appearing, the case was argued by tlie appellants and decided by the court.. Tlie citation required by act of Congress hud not been served upon (lie appellee, and this was not known to (.lie court when the case, was decided. At tlie succeeding term it was brought to tlie attention of the court by the appellee, and on his motion then made the court decided that the case was not legally before them at tlie preceding term when tlie judgment was rendered in consequence of the want of service of tlie citation upon the appellee, ami they declared tlie judgment of the former term null and void, and revoked the mándale. (15 Pet. R., 119.)

Tlie principie that an application for a rehearing upon the merits cannot be entertained after tlie term does rot apply where the judgment is sought to be set aside, as in this case, upon the ground Unit it was not a legal judgment when rendered for the want of jurisdiction. If the judgmeut when rendered was void, it could not conclude tlie rigid of any party.

Note 12.—Messner v. Lewis, 17 T., 519; Lyell v. Guadaloupe County, 28 T, 57; Geary v. Cummins, 28 T., 91; Loftin v. Nalley, 28 T., 127; McLane v. Russell, 29 T., 127; Duggan v. Noel, 30 T., 451; House v. Burnett, 40 T., 346; Halloran v. T. & N. O. R. R. Co., 40 T., 465.

But it is insisted that this court cannot receive the certificate of the clerk as evidence of the time of the adjournment of (he District. Court, (it not having been embraced in the record) in order to bo informed by it that the appeal bond was not given in time.

The better, practice would be .for the clerk to certify in every record the day of Hie adjournment of the court in order that the fact may appear by the record. This was not clone in the present case; and when the judgment was rendered, (his court had not the menus of knowing that the appeal had not been legally perfected. The record, however, was procured and presented for the action of this court by the appellee. The omission was not the fault of (lie appellant, and as the proceeding was ex parte, lie ought to be permitted to supply that omission and to perfect the record.

Before judgment, in a proper case, the regular course is to apply for a cer-tiorari to complete the record. But we are of opinion that, in this case, and for the purpose of tins application, it was competent thus to show the time of the adjournment of the court, the record being silent as to that fact.

It is further objected that the twenty days allowed for giving the appeal bond expired on Sunday, and that (be appellant was therefore entitled to die following Monday, which was the day on which the bond was in fact given.

This precise question was decided by the Supreme Court of New York in the ease Ex parte Dodge, (7 Cow. R., 147.) Several of the authorities now cited in support of the position that Sunday, being the last day oE the time allowed' by the statute for perfecting the appeal, is not to be counted, were cited and relied on to maintain the same proposition in that ease. But die court said: “The cases referred to respect rules of practice.” “Sunday lias in no case, we believe, been excluded in the computation of statute time.” (Id., 14S.) They accordingly decided that an appeal taken on Monday, the ton days allowed by the statute having expired on the preceding Sunday, was not. in lime.

The cases cited by counsel for the appellee show that the court, in tiie construction of its rules of practice, may exclude Sunday in the computation of time. But no case has shown that, where a statute directs that an act shall be done within a certain number of days, Sunday may be excluded from the computation, though it be the last day. That proposition cannot, it is believed, be maintained.

It remains to dispose of the objection that the appellants cannot take advantage of tlicir own omission to perfect their appeal in time.

If no question of jurisdiction was involved, this objection would doubtless have much force. But even consent cannot give jurisdiction. A party may he estopped by Ills own act. But ail estoppel of the party cannot confer upon the court jurisdiction of the case.

We are of opinion that the case was not legally before the court when the judgment of affirmance was rendered, and that judgment was consequently a nullity. It must bo so declared, and the mandate directed to the District Court must be revoked.  