
    AMERICAN NAT. BANK OF WICHITA FALLS et al. v. HALL, Chief Justice, et al.
    (No. 486-3985.)
    
    (Commission of Appeals of Texas, Section B.
    Oct. 15, 1924.)
    I. Courts <©=>247(7) — Only conflict between opinions of different Courts of Civil Appeals requires certification of questions.
    Under Rev. St. art. 1623, there is no duty to certify questions to the Supreme Court because of conflict between opinions of the same Court of Civil Appeals, or between opinion of a Court of Civil Appeals and that solely of the Commission of Appeals.
    2. Courts <@=247 (7) — Withdrawn opinion no basis for certifying questions on ground of conflict of opinions.
    Opinion of Court of Civil Appeals, which has on rehearing been “set aside and withdrawn,” is to be treated as if never rendered, and so no basis, under Rev. St. art. 1623, for certifying questions on ground of conflict between opinions.
    3. Courts <@=247 (7) — Certain opinions not in conflict so as to require certification of questions.
    There is no conflict requiring certification of questions under Rev. St. art. 1623, between opinion holding refusal of jury’s request to have reporter’s notes read to them not error, because there was no statute authorizing it, but one providing a different practice, and opinion holding it not reversible error to allow that practice; objection having gone only to the extent of testimony which should be reproduced and no injury appearing.
    4. Courts <@=>247(7) — “Facts” within rule as to when opinions are in conflict requiring certification of questions defined.
    Within the rule of there being no conflict between opinions of Courts of Civil Appeals requiring certification of questions under Rev. St. art. 1623, if based on materially different facts, term “facts” includes relevant parts of the trial and appellate record and procedure.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second series, Fact.]
    5. Courts <@=>247(7) — Conflict in opinions, justifying writ requiring certification of questions, not established by certain circumstances.
    Conflict between opinions, justifying writ requiring certification of questions under Rev. St. art. 1623, is not establishéd by one or more of the conclusions of law stated in one conflicting with those announced in the other, .in an instance where some only of the facts stated in the opinions are identical.
    6. Courts <@=>247(7) — No “conflict in opinions,” if any of substantial facts stated materially differ.
    If, as to any given point, any of the substantial facts stated in the opinions of different Courts of Civil Appeals are materially different, considering the opinions as a whole, conflict is not presented on such point, within Rev. St. art. 1623, so as to require certification of questions.
    7. Mandamus <@=>57(1) — 'To require certification of questions, irreconcilable conflict between opinions necessary.
    There must be irreconcilable conflict between opinions of different Courts of Civil Appeals, considered as a whole, that mandamus may issue requiring certification of questions, under Rev. St. art. 1623.
    8. Courts <@=>247(7) — Conflict of opinions as to sufficiency of defective petitions prevented . by difference in answers.
    Conflict between opinions as to sufficiency of defective petitions, requiring certification of questions under Rev. St. art. 1623, 1held prevented by fact that, in one ease, the only defendant in interest under Rule 31, admitted, though defectively, that plaintiff had a good fcause of action as set forth, except' as it might be defeated by defendant’s allegations and proof.
    Original proceeding in mandamus by the American National Bank of Wichita Palls and another against R. W. Hall, Chief Justice of the Court of Civil Appeals, Amarillo District, and others.
    Writ refused.
    See, also, 250 S. W. 279.
    Bonner, Bonner & Sanford, of Wichita Palls, for plaintiffs.
    Kay, Akin & Kenley, of Wichita Palls, for corespondent R. L. Hoggerton.
    
      
       Rehearing denied December 20, 1924.
    
   STAYTON, J.

Judgment against relators having been rendered after a trial by jury and affirmed by the Court of Civil Appeals at Amarillo (250 S. W. 279), they have applied for a writ of mandamus upon the ground that, between the opinion of the latter court and other opinions, cited in their petition, there are conflicts, as to which, under R. S. art. 1623, certain questions should be certified to the Supreme Court. One of the relators is a banking association, which clearly appears to be a stakeholder of the fund in litigation and disinterested in the result. The other one, G. C. Johnson, is a real party, and will therefore be viewed as the sole proponent of the petition.

The first opinion that is alleged to present a conflict emanated from the Court of Civil Appeals at Amarillo, and another, from the Commission of Appeals in a case where only the judgment that was recommended was adopted by the Supreme Court. As the law imposes no duty upon a Court of Civil Appeals to certify questions in one of its opinions which may be variant from its own opinion in another case or from an opinion of the Commission of Appeals, mandamus cannot be predicated upon conflicts of such nature.

A third ground in the petition is based on the opinion in the present case upon the first motion for rehearing, which, in the consideration of a subsequent motion for rehearing, was expressly “set aside and withdrawn,” and for that reason does not come within the wording of the statute; it was not adhered to, and must be treated as if it were never rendered. Smith v. Conner, 98 Tex. 437, 84 S. W. 815; Mixon v. Wallis (Tex. Civ. App.) 161 S. W. 911.

The further averment is made that a conflict appears between the opinion below and that of the Court of Civil Appeals at San Antonio in the case of San Antonio Traction Co. v. Badgett, 158 S. W. 805, touching the practice of permitting the court reporter’s notes to be read to the jury.

In the present ease the jiuy, after their retirement, went back into open court and asked that a portion of the testimony of one witness, as noted by the reporter, be read to them. Their request was granted over relator’s objection that a part, as distinguished from the entirety, of the testimony, should not be reproduced. The Court of Civil Appeals ruled that the action of the trial court was not reversible error because the statute upon the subject was directory only and the practice within the discretion of the court, and because no harm appeared by reason of its exercise in this instance.

But in the Badgett Case quite another ruling occurred and the circumstances were dissimilar. The jury’s request for a rehearsal of testimony was not granted, but was refused, and the Court of Civil Appeals held that the latter ruling was not error because there was no statute authorizing the practice but one providing for a different practice; and added that it might not have involved reversible error if the trial court had required the stenographer’s notes to be read.

One of these opinions depended upon the question of whether taking a certain step in a trial different from that supplied by statute in such cases was reversible error, in the absence of objection raising the point and in the absence of a showing of injury; the other, the question of whether the refusal to allow such a step was error. As the questions in the two cases were different, the opinions upon them fail to reveal such a conflict as the statute covers. Prom the holding, that it is not error for a trial judge to refuse to permit a certain novel step in procedure, it cannot follow that it is material and reversible error for him to do the opposite thing; that is, allow that procedure over an objection not leveled at the method of it, but- at the extent of the testimony reproduced and, moreover, causing no injury to the objecting party.

Only one other conflict is claimed. It is upon the basis of Kansas City, etc., Ry. Co. v. Weaver (Tex. Civ. App.) 191 S. W. 591, and relates to a ruling upon the sufficiency of the plaintiff’s petition in the trial court.

The present case was one where an allegation, to the effect that an abstract showing that a good and merchantable title had been tendered, was necessary to the statement of a cause of action in plaintiff’s behalf. Attached to the petition was a copy of the contract sued on, which, among other things, required an abstract showing that nature of title; and the allegations referred to this as an exhibit, and continued, that “abstract * * * was delivered * * * and defendant * * * accepted said abstract.” Defendant presented to the court no demurrer of any kind. As stated by the Court of Civil Appeals, his original answer had contained a general demurrer, but, as shown by relator and by the respondents who have appeared, his amended answer upon which he went to trial contained no demurrer of any nature but commenced with an admission, under rule 31 for district and county courts, that plaintiff had a good cause of action as set forth in his petition, except so far as it might be defeated, in whole or in part, by the facts of the answer constituting a good defense and established at the trial. There is nothing to show that this admission was entered of record as required by the rule. It probably was not. The remainder of the amended answer began with the following vague but intelligible clause immediately after the admission, “and in this connection, the defendant avers the facts of the cause to constitute a good and valid defense to plaintiff’s cause of action, and that the plaintiff is not entitled to recover anything herein because of the following facts herein set forth.” Then came allegations of fraudulent misrepresentations by plaintiff as to the subject-matter of the contract and a failure on plaintiff’s part to make proof that lease rentals had been paid, in connection with which latter allegation was one stating “that * * * the abstract showed no title in plaintiff.” The Court of Civil Appeals, as presently observed, construed this to mean that the plaintiff had not “tendered to appellant an abstract showing a good and merchantable title.” The case was tried by both parties upon the theory that defendant had the burden of proof upon that question and the defendant himself requested that an issue be submitted to the jury as to whether the abstract that was tendered showed that kind of title. The request was, however, refused.

Insufficiency of the petition, because of the absence of allegations as to the abstract, was raised for the first time in the Court of Civil Appeals as fundamental error. That court, in its opinions, stated in substance what has been noted above, and held that, while the plaintiff omitted to aver that he had tendered the necessary showing, “the defendant alleged that this had not been done and assumed the burden of proof upon that issue, * * * and, both parties having tried the case on that theory,” no reversible error was shown, and also that “the rule is well established in this state that, where plaintiff fails to make a necessary averment of fact, but the omission is supplied by an allegation in the answer, even though * * * a demurrer to the petition upon that ground be overruled, the defect in the petition is unimportant, and the appellate court is not justified in reversing the case for that reason.”

The cited decision in Kansas City, etc., Ry. Co. v. Weaver, which is relied upon as presenting a conflict on this phase of the case, was one where damages against a railroad company, to which its former properties had been returned by receivers, were sought on account of a certain excavation made during the receivership; and, although the petition alleged that the receivers did the work, it failed to state that they acted “as such,” or with authority from their constituent court. The answer contained a special exception to this defect. It also averred that if the excavation was caused by the receivers or by any person acting under them, it occurred “without authority from the court appointing them.” The trial court overruled the special exception. The Court of Civil Appeals held that the latter ruling was error because it was necessary for plaintiff to aver that the receivers acted with authority, and further, that the defect was not cured by the quoted allegations of the answer. In the latter respect, the court sáid:

“Plaintiff’s petition must contain such affirmative allegations as will put defendant upon notice of the facts relied upon as a basis of a cause of action, and the negative allegation of the answer * * * did not cure the defect.”

Further on in the opinion, it added that the petition was not sufficient to charge liability and thus furnish the basis for the admission of testimony of the required authority.

In some respects the material facts underlying the two opinions seems to be virtually identical, and the law announced in them seems to be substantially opposed on at least one important point. But the two are sufficiently distinguishable to withdraw them from the scope of the statute. They are in part based upon materially different facts, and within the term “facts,” in this connection, are included the relevant parts of the trial and appellate record and procedure.

Only one instance need be given. In the present case, though the petition was insufficient because of the omission of a necessary averment, as in the other, in it alone the defendant admitted under the rule that plaintiff had a good cause of action as set forth in the petition except as it might be defeated by the allegations of the answer constituting a good defense and established on the trial.

Neither the circumstance that one or more of the conclusions of law in the latter opinion, may be in conflict with those announced in the other case, nor that some of the facts stated in each of them are virtually identical, establishes a sufficient conflict in a proceeding of this character to justify the relief that is sought. If, as to any given point, any of the substantial facts stated in the opinions are materially different, a conflict is not presented upon such point. The opinions in such respect must be considered “as a whole,” and, when so considered, in order that mandamus may issue, there must be an “irreconcilable conflict between the two.” Garitty v. Rainey, 112 Tex. 374, 247 S. W. 825; Borchers v. Fly (Tex. Com. App.) 262 S. W. 733, and authorities cited.

For this reason, the distinction between the two cases that has already been indicated prevents the opinions in them from being in conflict within the meaning of the statute. The inquiry is suggested as to whether the difference that has been indicated is substantial. The admission under rule SI is ordinarily ineffectual in behalf of one of two defendants unless both avail themselves of it; and only one did so in this case. It may usually have a like result, unless it be entered of record as the rule requires, and very likely no such record was here made. Moreover, there may be reason to doubt the sufficiency of the procedure from 'defendant’s standpoint, where, notwithstanding the admission, the answer contains, vas in the present case, matter derogatory to it.

It is not thought that these considerations have any effect in the present easq. It is unimportant that the banking association did not comply with the rule, because it was only a stakeholdér, had deposited the money in court, had admitted that the funds belonged to whichever one of the other parties prevailed, and was not such a litigant as could take any of the steps contemplated by the rule. And it is also unimportant that, as to the other defendant, the admission was not recorded and was followed by matter which infringed upon it. Because of his method defendant might not have been able to complain if the trial court had refused him the privilege of opening and closing the ease; but the Court of Civil Appeals states, and it is not disputed, that he obtained, and was not refused, the benefit of the rule. He is therefore justly subject to the burden of the position thus voluntarily assumed and enjoyed by him.

Under that burden plaintiff was entitled to recover as he claimed, even though his pleading was defective by reason of an omission in its averments, unless he should be defeated by the matter in avoidance which was set up in the answer. Sanders v. Bridges, 67 Tex. 95, 2 S. W. 663; Dashiel v. Lott (Tex. Com. App.) 243 S. W. 1072. This fact distinguishes the present case from the cited case.

It is concluded that the writ of mandamus should be denied.

CURETON, C. J. The opinion of the Commission of Appeals is adopted, and writ of mandamus refused. 
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