Durst v. McCampbell

40 S.W. 955, 91 Tex. 147, 1897 Tex. LEXIS 391

Opinions

This is an application for a writ of error to a judgment of the Court of Civil Appeals which reversed the judgment of the District Court and remanded the cause. In order to show jurisdiction in this court, it is alleged in the petition for the writ that the decision of the Court of Civil Appeals is in conflict with the decision of the Supreme Court in the same case reported in 73 Tex. 410, upon the question whether or not the action was barred by the statute of limitations of four years. It is impossible to determine from the report of the case upon the former appeal whether that question was passed upon by this court or not. By referring to the original transcript on that appeal, we find that the appellants assigned error in the action of the trial court in overruling their exception to the petition upon the ground that the action was barred by the statute of limitation. But the briefs which were filed upon that appeal have been lost from the file; and we cannot ascertain, whether the assignment was carried into the brief or not. If not, it was waived and the question was not before the court. If it was, the question was presented and we think it is fairly to be presumed, that the court held the assignment not well taken. If so, then there is a conflict between that decision and that of the Court of Civil Appeals.

Thinking it probable that a copy of the brief referred to may be procured and presented to this court and that it will show definitely whether the assignment was presented or not, we will suspend action upon the application for two weeks, so as to give counsel an opportunity to procure and present such copy. If presented, it should be accompanied with satisfactory evidence that it is a true copy of the original filed in the Supreme Court.

Delivered May 20, 1897.