J. B. Colt Co. v. Wheeler

Texas Commission of Appeals

J. B. Colt Co. v. Wheeler

23 S.W.2d 299

CourtTexas Commission of Appeals

DecidedJanuary 29, 1930

DocketNo. 1121-5385

StatusPublished

This text of 23 S.W.2d 299 (J. B. Colt Co. v. Wheeler) is published on Counsel Stack Legal Research, covering Texas Commission of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

J. B. Colt Co. v. Wheeler, 23 S.W.2d 299 (Tex. Super. Ct. 1930).

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Opinion

SHORT, P. J.

The writ of error in this-ease was granted by reason of the allegations • in the application that the opinion rendered by the Court of Civil Appeals, wherein it af[300]*300firmed tlie judgment of the trial court, which was the county court of Yan Zandt county, was in conflict with the holding of the Supreme Court in Avery Company v. Harrison, 267 S. W. 254, and with the holding of the Court of Civil Appeals in the cases of Mid-Continent Life Insurance Co. v. Pendleton, 202 S. W. 769; Burchhill v. Hermsmeyer, 212 S. W. 767; L. D. Powell Co. v. Sturgeon, 299 S. W. 274; and Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 596. Assuming these allegations to have been correct, the Supreme Court was authorized to grant the writ, since under article 1728, R. S. 1925, the Supreme Court has appellate jurisdiction in those cases in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any question of lay.

The “conflict” which will confer jurisdiction upon the Supreme Court in county court cases is discussed at some length, and to us quite satisfactorily, by Chief Justice Cureton in the case of Garitty v. Rainey, 112 Tex. 369, 247 S. W. 825, 827, and by Judge Speer in the case of the City of Abilene v. McMahan, 292 S. W. 525, 528. We have carefully reviewed the opinion of Court of Civil Appeals (12 S. W.[2d] 1102) written by Associate Justice Walker of the Ninth Court of Civil Appeals, in this case, and compared that opinion with the several holdings in the several cases above mentioned, wherein it is alleged that the decision in' this case is in conflict with the holdings in those cases, and have reached the conclusion that no such conflict, within the meaning of that word, exists. As said in Garitty v. Rainey, supra: “The conflict in decisions of Courts of Civil Appeals which will authorize this court to issue a writ of mandamus and require certification must be upon a question of law involved and determined, and such that one decision would overrule the other if both were rendered by the same court. The conflict must be well defined. An apparent inconsistency in the. principles announced, or in the application of recognized principles, is not sufficient. The rulings must be so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.”

In City of Abilene v. McMahan, it is said: “It is elementary that in any case some one or more of the grounds enumerated must exist to authorize the Supreme Court to assume jurisdiction at all. In the absence of such showing, the application for writ of error to the Court of Civil Appeals will be dismissed for want of jurisdiction.”

Since we have reached the conclusion, based upon the reasons above stated, that the Supreme Court, under the law, is without authority to decide any question involved in this case, we recommend that the writ of error heretofore granted be dismissed.

CURETON, C. J. The writ of error is dismissed, as recommended by the Commission of Appeals.

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SHORT, P. J.

The writ of error in this-ease was granted by reason of the allegations • in the application that the opinion rendered by the Court of Civil Appeals, wherein it af[300]*300firmed tlie judgment of the trial court, which was the county court of Yan Zandt county, was in conflict with the holding of the Supreme Court in Avery Company v. Harrison, 267 S. W. 254, and with the holding of the Court of Civil Appeals in the cases of Mid-Continent Life Insurance Co. v. Pendleton, 202 S. W. 769; Burchhill v. Hermsmeyer, 212 S. W. 767; L. D. Powell Co. v. Sturgeon, 299 S. W. 274; and Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 596. Assuming these allegations to have been correct, the Supreme Court was authorized to grant the writ, since under article 1728, R. S. 1925, the Supreme Court has appellate jurisdiction in those cases in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any question of lay.

The “conflict” which will confer jurisdiction upon the Supreme Court in county court cases is discussed at some length, and to us quite satisfactorily, by Chief Justice Cureton in the case of Garitty v. Rainey, 112 Tex. 369, 247 S. W. 825, 827, and by Judge Speer in the case of the City of Abilene v. McMahan, 292 S. W. 525, 528. We have carefully reviewed the opinion of Court of Civil Appeals (12 S. W.[2d] 1102) written by Associate Justice Walker of the Ninth Court of Civil Appeals, in this case, and compared that opinion with the several holdings in the several cases above mentioned, wherein it is alleged that the decision in' this case is in conflict with the holdings in those cases, and have reached the conclusion that no such conflict, within the meaning of that word, exists. As said in Garitty v. Rainey, supra: “The conflict in decisions of Courts of Civil Appeals which will authorize this court to issue a writ of mandamus and require certification must be upon a question of law involved and determined, and such that one decision would overrule the other if both were rendered by the same court. The conflict must be well defined. An apparent inconsistency in the. principles announced, or in the application of recognized principles, is not sufficient. The rulings must be so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.”

In City of Abilene v. McMahan, it is said: “It is elementary that in any case some one or more of the grounds enumerated must exist to authorize the Supreme Court to assume jurisdiction at all. In the absence of such showing, the application for writ of error to the Court of Civil Appeals will be dismissed for want of jurisdiction.”

Since we have reached the conclusion, based upon the reasons above stated, that the Supreme Court, under the law, is without authority to decide any question involved in this case, we recommend that the writ of error heretofore granted be dismissed.

CURETON, C. J. The writ of error is dismissed, as recommended by the Commission of Appeals.

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23 S.W.2d 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-b-colt-co-v-wheeler-texcommnapp-1930.

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