
    MISSOURI, K. & T. RY. CO. OF TEXAS v. GREGORY et al.
    (Mo. No. 4271, App. No. 10554.)
    (Supreme Court of Texas.
    June 19, 1918.)
    Appeal and error <S=344 — No writ of error lies to Supreme Court where judgments of Courts of Civil Appeals final.
    Where judgments of the Courts of Civil Appeals are made final by Rev. St. 1911, art. 1591, as judgments in cases within the jurisdiction of the county courts, no writ of error lies to the Supreme Court under article 1521, as amended by Acts 35th Leg. c. 75 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1521).
    On motion for rehearing at application for writ of error, previously dismissed.
    C. C. Huff, A. H. McKnight, and J. M. Chambers, all of Dallas, and Tyler, Hubbard & Tyler, of Belton, for applicant.
    Thomas, Milam & Touchstone, of Dallas, and M. E. Monteith, of Belton, for respondent Gregory.
   HAWKINS, J.

The application of plaintiff in error for a writ of error was dismissed by this court for want of jurisdiction; the suit being one which properly might have originated in the county court. Dismissal resulted from an application of the views expressed by a majority of this court in Cole v. State, 106 Tex. 472, 170 S. W. 1036, to the effect that R. S. art. 1521, as amended by the Thirty-Third Legislature (Gen. Laws 1913, c. 55, p. 107 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1521]), was controlled by R. S. 1591, a much earlier statute, which declares final the appellate jurisdiction of Courts of Civil Appeals in certain enumerated classes of eases, including “any civil case appealed from a county court, or from a district court when, under the Constitution, a county court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving the revenue laws of the state or the validity of a statute," and that consequently cases within' the potential jurisdiction of the county court were not within the appellate jurisdiction of the Supreme Court.

An analogous situation is presented by our present jurisdictional statute, article 1521, as amended by General Laws 1917, c. 75, p. 140 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1521).

It' is true that I have never concurred'in the above-mentioned construction and application of article 1521', as amended in 1913. McFarland v. Hammond, 106 Tex. 579, 173 S. W. 645; Spence v. Fenchler, 107 Tex. 443, 180 S. W. 597. Nevertheless the rule of construction announced in Cole v. State seems to have become the settled doctrine controlling our practice, and recently has been reaffirmed by action of my present Associates.

Moreover, and whether said rule of construction as applied to said amendment of 1913 was sound and correct or not, I am constrained to believe that under general and well-settled and sound rules of statutory construction it should now be held that, inasmuch as the decision in Cole v. State was rendered in 1914, long prior to the enactment of our said present jurisdictional statute, .and had been applied thereafter by this court in a great number of cases and continuously down to the last amendment of said article 1521, effective July 1, 1917, that article, as it now stands, should be construed and applied in the light of said former decision and practice. Under the circumstances, had the Legislature intended otherwise, it rationally would have employed different or additional words in said act of 1917, and would have repealed or amended, expressly, said older statute (article 1591), which upon its face does appear to conflict with the later provisions of article 1521 as it now stands.

It follows that the motion for rehearing should be overruled.

The foregoing is presented merely as an expression of my individual views. 
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