Fidelity & Casualty Co. of New York v. Allibone

Texas Supreme Court

Fidelity & Casualty Co. of New York v. Allibone

40 S.W. 399, 90 Tex. 660, 1897 Tex. LEXIS 365

CourtTexas Supreme Court

DecidedApril 29, 1897

StatusPublished

Cited by7 cases

This text of 40 S.W. 399 (Fidelity & Casualty Co. of New York v. Allibone) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fidelity & Casualty Co. of New York v. Allibone, 40 S.W. 399, 90 Tex. 660, 1897 Tex. LEXIS 365 (Tex. 1897).

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Opinion

GAINES, Chief Justice.

Since the filing of the application for the writ of error in this case counsel for the appellee, desiring as he says to eliminate the federal question involved, has offered to remit in this court so much of the recovery as ivas given for attorneys’ fees and damages under the statute. While, upon presentation of an application, we have jurisdiction to determine whether or not the wait of error should be grant *662 ed, we have no jurisdiction over the case, until the writ be granted. Hence, at this stage of the proceedings we have no power to accept a remittitur, entered with a view to eliminate error in the judgment. Taking the case as presented upon the application, without reference to the attempted remittitur, we find no error in the proceedings or judgment. As to the constitutional question we agree with the Court of Civil Appeals in holding that it is distinguishable from that passed upon by the Supreme Court of the United States in Railway Company v. Ellis, U. S. Sup. Ct. advance sheets No. 7, p. 284.

If appellee still desires to eliminate the federal question by filing a remittitur, she must remit in the Court of Civil Appeals.

The application for the writ of error is refused.

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GAINES, Chief Justice.

Since the filing of the application for the writ of error in this case counsel for the appellee, desiring as he says to eliminate the federal question involved, has offered to remit in this court so much of the recovery as ivas given for attorneys’ fees and damages under the statute. While, upon presentation of an application, we have jurisdiction to determine whether or not the wait of error should be grant *662 ed, we have no jurisdiction over the case, until the writ be granted. Hence, at this stage of the proceedings we have no power to accept a remittitur, entered with a view to eliminate error in the judgment. Taking the case as presented upon the application, without reference to the attempted remittitur, we find no error in the proceedings or judgment. As to the constitutional question we agree with the Court of Civil Appeals in holding that it is distinguishable from that passed upon by the Supreme Court of the United States in Railway Company v. Ellis, U. S. Sup. Ct. advance sheets No. 7, p. 284.

If appellee still desires to eliminate the federal question by filing a remittitur, she must remit in the Court of Civil Appeals.

The application for the writ of error is refused.

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Bluebook (online)

40 S.W. 399, 90 Tex. 660, 1897 Tex. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fidelity-casualty-co-of-new-york-v-allibone-tex-1897.

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