
    FRUIT DISPATCH CO. v. RAINEY, Chief Justice et al.
    (No. 3092.)
    (Supreme Court of Texas.
    June 8, 1921.)
    1.Appeal and error <&wkey;lll4 — Where lower court was without jurisdiction, judgment should be reversed, but appeal should not be dismissed.
    On appeal from a judgment of the county court in an action begun in justice court wherein the appeal bond was not filed in time so as to give the county court jurisdiction, the judgment of the county court should be reversed, and the cause remanded, with directions to dismiss, and it is improper to reverse and dismiss the appeal thus charging the successful party with payment of costs.
    2. Mandamus <&wkey;57(l) — Will issue to compel certification of question to Supreme Court in case of conflict between decisions of Courts of Civil Appeals.
    Where there is a conflict between decisions of the Courts of Civil Appeals, mandamus to compel certification of the question to the Supreme Court will be issued; the Court of Civil Appeals having final jurisdiction over the case.
    Original application by the Fruit Dispatch Company for writ of mandamus against the Honorable Anson Rainey, Chief Justice of the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, and others, to compel certification of question arising in an action by relator against the Independent Fruit Company, in which the judgment for defendants was by the Court of Civil Appeals reversed, and appeal dismissed (198 S. W. 594).
    Writ awarded.
    
      Thompson, Barwise & Wharton and Geo. Thompson, Jr., all of Fort Worth, for plaintiff.
   PHIDDIPS, O. J.

The relator prays for a mandamus directed to the members of the Honorable Court of Civil Appeals for the Fifth Supreme Judicial District for the certification .to this court of the correctness' of their action in the disposition of a certain case to which relator was a party.

The case' was originally a suit in the Justice Court, Precinct No. i, Dallas County, wherein the relator was plaintiff, against certain defendants, and in which on trial in that court relator as plaintiff recovered judgment. One of the defendants sought to appeal to the County Court at Daw of Dallas County, but as held by the Court of Civil Appeals did not file his appeal bond within the time prescribed by law. A trial was had in the County Court at Daw without its being noticed, apparently, that that court was without jurisdiction on account of the failure to file the appeal bond within the proper time. Judgment was rendered there in favor of the appealing defendant. Thereupon the relator perfected its appeal from this judgment to the Court of Civil Appeals, and in that court, because of the County Court at Daw’s want of jurisdiction, moved that the Court of Civil Appeals reverse the judgment of the County Court at Daw and remand the cause to that court with instructions to dismiss tile appeal from the Justice Court. The Court of Civil Appeals, however, did not so dispose of the case. According to its opinion which accompanies the petition for mandamus, it held that the County Court at Daw had no jurisdiction of the appeal from the Justice Court, and reversed the judgment of the County Court at Daw and dismissed the relator’s appeal, the effect of which necessarily was to tax the relator with the costs of the appeal.

On the ground that the jurisdiction of the Court of Civil Appeals was final in the case and that such disposition of it was in conflict with the holdings of other Courts of Civil Appeals, the relator thereupon moved the court to certify the question to this court for determination, and now seeks a mandamus to require such certification.

In accord with the holding of this court in Pecos & N. T. R. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, and Turnbow v. Bryant Co., 107 Tex. 563, 181 S. W. 686, it is held in Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618; Fort Worth & R. G. R. Co. v. Mathews, 169 S. W. 1052, and in Dupree v. Massey, 180 S. W. 668 — decisions by the Courts of Civil Appeals for the Second, Third, and Seventh Districts, respectively, that on the appeal to the Court of Civil Appeals of a cause of which the trial court did not have jurisdiction, the proper practice is not to dismiss the appeal but to reverse the judgment and remand the cause with the direction that it be dismissed. Other decisions of the Courts of Civil Appeals are to the same effect

The conflict between the holding of the Court of Civil Appeals in its disposition of the present case and these decisions is evident. Since the case is one of which the jurisdiction of the Court of Civil Appeals is final, the mandamus is accordingly awarded. 
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