Davis v. Preston

35 S.W.2d 403

• Court: Texas Commission of Appeals
• Decided: February 18, 1931
• Docket: Motion No. 9114; No. 687-4240
• Status: Published

Opinion

CRITZ, J.

The facts and circumstances involved in this motion are fully stated in an opinion by this section of the Commission rendered at the last term of the Supreme Court [118 Tex. 303, 16 S.W.(2d) 117] with reference to the above motion, and this opinion is here referred to and made a part hereof for a full statement of the matters involved.

The motion is filed by the defendant in error, and petitions the Supreme Court to recall its mandate heretofore issued in the name of James C. Davis, Federal Agent, and for the correction of the original judgment of the Supreme Court by the substitution of Andrew W. Mellon, Federal Agent, for and instead of James C. Davis. It is further prayed that as so corrected the mandate again issue in conformity with the corrected judgment. Andrew W. Mellon has appeared and contested the motion.

An examination of the records of the Supreme Court discloses that it has been its practice, under circumstances such as these, to grant the relief here prayed for. In the case of Payne v. Cummins, 243 S. W. 974, a similar motion was granted by this court and similar relief here prayed for awarded.

It appears that the mandate heretofore issued in the name of Davis has already been recalled at the last term of this court as recommended by the Commission in the opinion above mentioned, and this motion carried over by proper order of the Supreme Court, until this term.

We now recommend that the original judgment of the Supreme. Court be corrected by the substitution of Andrew W. Mellon, as Federal Agent, for and instead of John C. Davis, and that as so corrected mandate again issue.