
    INTERNATIONAL & GREAT NORTHERN R. CO. v. PLEASANTS et al.
    (Motion No. 7627.)
    Supreme Court of Texas.
    June 22, 1927.
    1. Mandamus &wkey;4(I) — Mandamus will not lie where writ of error is available.
    Mandamus does not lie where the relator has a speedy, plain, and complete remedy by writ of error, of which he fails to avail himself.
    2. Mandamus &wkey;4(3)— Supreme Court will not grant mandamus where writ of error is available, whether or not Court of Civil Appeals’ ruling is in exercise of original or appellate jurisdiction (Rev. St. I925„ arts. 1728, 1821, 1855).
    Under Rev. St. 1925, arts. 1728, 1821, 1855, Supreme Court will not grant mandamus to compel certification of question decided by the Court of Civil Appeals on the grounds that the decision is in conflict with opinions of the Supreme Court and other' Courts of Civil Appeals, since a writ of error is available, and it mates no difference in applying this rule whether or not the ruling of the Court of Civil Appeals is made in reviewing a judgment rendered by the county court in the exercise of original or of appellate jurisdiction.
    Mandamus proceeding in the Supreme Court to compel the Court of Civil Appeals to certify the question of law in an action between International & Great Northern Railroad Company against Robert A. Pleasants and others. On motion for leave to file petition for mandamus.
    Motion overruled.
    A. H. Spann, of Navasota, and Andrews, Streetman, Logue & Mobley, of Houston, for relator.
   GREENWOOD, J.

Relator seeks by mandamus to compel the Galveston Court of Civil Appeals to certify to the Supreme Court a certain question of law determined by that court on an appeal from a judgment of the county court, it being contended that in the decision of the question the Court of Civil Appeals is in conflict with opinions of the Supreme Court and other Courts of Civil Appeals.

Though the clearest conflict were shown, this court would not grant relator leave to institute a suit for mandamus to compel the certification of the question decided by the Court of Civil Appeals.

It is an elementary principle that mandamus does not lie where the relator has a speedy, plain, and complete remedy by writ of error, of which he fails to avail himself. Chief Justice Gaines declares the familiar rule in Hogue v. Baker, 92 Tex. 61, 45 S. W. 1004, in saying:

“It is true that ordinarily the writ of mandamus must be the last resort; and it will not be allowed if there be another remedy which is adequate and complete.”

Prior to the 1923 amendment of the articles of the Revised Statutes, now numbered 1855, 1821, and 1728, the jurisdiction of the Courts of Civil Appeals was conclusive on the law and facts and was final in any civil case appealed from the county court. Camp v. Equitable Society of Belton, 108 Tex. 246, 191 S. W. 699.

It was because the jurisdiction of the Court of Civil Appeals was final and no writ of error could be issued for the review of its judgment that the. Supreme Court formerly awarded a mandarpus to compel certification of questions involving conflicting decisions in cases appealed from the county court. That the basis of our action in sustaining the right to mandamus in such cases was the want of authority in the Supreme Court to grant a writ of error is pointed out in Warren v. Willson, 108 Tex. 263, 192 S. W. 529, and Eruit Dispatch Co. v. Rainey, 111 Tex. 266, 232 S. W. 282.

Relator’s case was decided by the Court of Civil Appeals in 1927. Articles 1821 and 1728 of the Revised Statutes authorized the Supreme Court to grant prompt and complete relief to review the decision now complained of, if found to be in conflict with other decisions of the Supreme Court or in conflict with the decision of another Court of Civil Appeals.

We have already construed the present statutes as not supporting the remedy by mandamus from the Supreme Court for the correction of rulings reviewable by that court on writ of error. Maxwell v. Hall, 114 Tex. 319, 267 S. W. 670. It makes no difference in the application of the rule whether the ruling of the Court of Civil Appeals is made in reviewing a judgment rendered by the county court in the exercise of original or of appellate jurisdiction. Our ruling in Maxwell v. Hall, supra, and our refusal to permit the petition for mandamus now presented to be filed accords with the long-established practice in this court. Ewing v. Cohen, 63 Tex. 482; Steele v. Goodrich, 87 Tex. 401, 28 S. W. 939; State v. Fisher, 94 Tex. 491, 62 S. W. 540.

The motion for leave to file the petition is therefore overruled. 
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