State of Texas v. Fisher

Texas Supreme Court

State of Texas v. Fisher

62 S.W. 540, 94 Tex. 491, 1901 Tex. LEXIS 177

CourtTexas Supreme Court

DecidedApril 29, 1901

DocketMotion No. 857.

StatusPublished

Cited by7 cases

This text of 62 S.W. 540 (State of Texas v. Fisher) 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

State of Texas v. Fisher, 62 S.W. 540, 94 Tex. 491, 1901 Tex. LEXIS 177 (Tex. 1901).

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Opinion

GAINES, Chief Justice.

This is a motion to file a petition for the writ of mandamus against the judges of the Court of Civil Appeals for the Third Supreme Judicial District to compel them to certify a dissent in a certain cause decided in that court in which the relator was appellant and the Austin & Northwestern Eailroad Company was appellee. The allegations of the petition show that the judgment was affirmed, that one of the judges dissented from the conclusion upon which the affirmance was based, and that counsel for the petitioner moved the court to certify the question of dissent.

Article 1040 of the Eevised Statutes reads as follows: “When any one of said Courts of Civil Appeals shall in any cause or proceeding render a decision in which any one of the judges therein sitting shall dissent as to any conclusions of law material to the decision of the case, said judge shall enter the grounds of his dissent of record, and the said Court of Civil Appeals shall, upon motion of the party to "the cause, or on its own motion, certify the point or points of dissent to the Supreme Court.” Whether" or not it is the duty of the court to certify the point of dissent we do not find it necessary to decide. For the purposes of this opinion, it may he conceded that it is. The writ of mandamus will not he issued where the party complaining has another- plain, adequate, and complete remedy by due course of law. State v. Morris, 86 Texas, 226, and cases cited; Ark. B. and L. Assn. v. Madden, 91 Texas, 461. According to the allegations of the petition, the amount in controversy aggregates *492 ' “more than $10,000,” and the judgment of the District Court has been affirmed. Therefore, this court has jurisdiction of the case; and if the judgment be erroneous, upon application to us for a writ of error, we have the power and it will be our duty to correct the error. So there is a plain remedy without recourse to the writ of mandamus. Therefore, the motion to file the petition is denied.

Motion denied.

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GAINES, Chief Justice.

This is a motion to file a petition for the writ of mandamus against the judges of the Court of Civil Appeals for the Third Supreme Judicial District to compel them to certify a dissent in a certain cause decided in that court in which the relator was appellant and the Austin & Northwestern Eailroad Company was appellee. The allegations of the petition show that the judgment was affirmed, that one of the judges dissented from the conclusion upon which the affirmance was based, and that counsel for the petitioner moved the court to certify the question of dissent.

Article 1040 of the Eevised Statutes reads as follows: “When any one of said Courts of Civil Appeals shall in any cause or proceeding render a decision in which any one of the judges therein sitting shall dissent as to any conclusions of law material to the decision of the case, said judge shall enter the grounds of his dissent of record, and the said Court of Civil Appeals shall, upon motion of the party to "the cause, or on its own motion, certify the point or points of dissent to the Supreme Court.” Whether" or not it is the duty of the court to certify the point of dissent we do not find it necessary to decide. For the purposes of this opinion, it may he conceded that it is. The writ of mandamus will not he issued where the party complaining has another- plain, adequate, and complete remedy by due course of law. State v. Morris, 86 Texas, 226, and cases cited; Ark. B. and L. Assn. v. Madden, 91 Texas, 461. According to the allegations of the petition, the amount in controversy aggregates *492 ' “more than $10,000,” and the judgment of the District Court has been affirmed. Therefore, this court has jurisdiction of the case; and if the judgment be erroneous, upon application to us for a writ of error, we have the power and it will be our duty to correct the error. So there is a plain remedy without recourse to the writ of mandamus. Therefore, the motion to file the petition is denied.

Motion denied.

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Bluebook (online)

62 S.W. 540, 94 Tex. 491, 1901 Tex. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-texas-v-fisher-tex-1901.

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