
    TEXAS CO. v. CHARLES CLARK & CO.
    (No. 357-3120.)
    (Commission of Appeals of Texas, Section A.
    Nov. 15, 1922.)
    I.Appeal and error <&wkey;l 188 — Right to mandate from Court of Civil Appeals not barred till 12 months after Supreme Court action on writ of error.
    Where the Court of Civil Appeals has reversed and remanded a ease and denied a motion for rehearing, and a petition for writ of error to the Supreme Court has been made, the judgment of the Court of Civil Appeals does not become final, so long* as it is subject to the review of the Supreme Court, within the meaning of Rev. St. art. 1559, providing that no mandate shall issue to the court of origin of any ease unless the same shall be'taken out within 12 months after the rendition of a final judgment or denial of a motion for new trial, and such mandate is issuable at any time within 12 months after dismissal of the writ of error for want of jurisdiction by the Supreme Court.
    2. Appeal and error <&wkey;l 188 — Application for writ of error stays running of statute limiting time for issuing mandates, whether denied or dismissed.
    Where an application for a writ of error from a judgment of the Court of Civil Appeals is sued out under Rev. St. arts. 1540-1542, the running of the 12-month period prescribed by article 1559, within which mandates may issue to the courts of origin in the cases reversed or remanded, is stayed pending action in the Supreme Court, regardless of whether the judgment of that court denies the writ or dismisses it for want of jurisdiction.
    3. Appeal and error &wkey;>II88 — Rule staying issuance of mandate pending Supreme Court disposition applies to writ of error regardless of sufficiency.
    Rule No. 66 for the Court of Civil Appeals (142 S. W. xvi), providing that the clerk of such court shall withhold mandates pending disposition by the Supreme Court, applies to applications for writ of error regardless of their sufficiency, and is in effect a construction of Rev. St. art. 1559, providing that mandates shall issue within 12 months of final judgment.
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Action by Charles Clark & Co. against the Texas Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals (182 S. W. 351), which reversed and remanded. After denial of plaintiff’s application for writ of error in the Supreme Court for want of jurisdiction (196 S. W. 251), he sought a mandate from the Court of Civil Appeals to the district court more than 12 months after judgment. Questions certified by the Court of Civil Appeals to the Supreme Court.
    Questions answered.
    T. J. Lawhon, of Houston, for plaintiff. James B. & Charles J. Stubbs, of Galveston, and Marion J. Levy, of Dallas, for defendant
   GALLAGHER, J.

The certificate of the honorable Court of Civil Appeals shows the following facts:

Charles Clark, doing business as Charles Clark & Co., plaintiff, brought suit in the district court of Galveston county against the Texas Company, defendant, to recover the value of a barge, which plaintiff alleged was destroyed by fire caused by the negligence of defendant. The trial in the district court resulted in a judgment in favor of plaintiff in the sum of $8,707. Defendant appealed, and the Court of Civil Appeals reversed the judgment and ordered the cause remanded to the district court for another trial, 182 S. W. 351. Thereafter, on the 20th day of April, 1916, that court overruled plaintiff’s motion for rehearing.

Plaintiff thereafter, on May 20, 1916, filed with the clerk of the Court of Civil Appeals a petition for writ of error, which, together with the record in the case, was forwarded to the Supreme Court. On April 18, 1917; the Supreme Court dismissed the application for writ of error “for want of jurisdiction.” No motion for rehearing having been filed within the time allowed therefor, the clerk of the Supreme Court returned the record, together with a certified copy of the order of dismissal, to the Court of Civil Appeals, and the same was received and filed by the.clerk thereof on May 7, 1917.

The clerk of the Court of Civil Appeals, on application of defendant, on June 1, 1917, issued his certificate reciting the facts aforesaid, and attached thereto certified copies of the orders of that court, reversing and remanding the cause and overruling motion for rehearing, and of the order of the Supreme Court dismissing the application for writ of error for want of jurisdiction. The defendant, on the same day, filed in the district court its motion to dismiss the cause under the provisions of article 1559 of the Revised Statutes, and attached thereto the said certificate. Thereafter, on the same day, the plaintiff applied for and received from the clerk of the Court of Civil Appeals a mandate in said cause, and filed the same in said district court. Defendant then filed in said Court of Civil Appeals a motion requesting said court to order the return to it of said mandate. The judges of that court, being unable to agree upon what disposition to make of such motion, have certified to the Supreme Court the following questions:

'“First. In cases reversed and remanded by this Court which may be carried to the Supreme Court by writ of error, can a mandate from this court be issued more than 12 months after the motion for rehearing has been overruled, when the application for writ of error has not been acted on by the Supreme Court within the 12 months, and is thereafter refused or dismissed for want of jurisdiction, there being no question of good faith on the part of appellee in making the application?
“Second. If the above question is answered in the negative, then we ask, Ought the motion to recall the mandate in this case be granted?”

The application for writ of error under consideration was filed and acted upon by the Supreme Court under the provisions of the act of March 28, 1913 (Gen. L. P. 107) defining the jurisdiction of the Supreme Court and regulating the practice therein. That act limited the jurisdiction of the Supreme Court to questions of law arising in the following classes of cases:

“(1) Those in which the judges of the courts of civil appeals may disagree upon any question of law material to the decision.
“(2) Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any such question of law.
“(3) Those involving the validity of statutes.
“(4) Those involving the revenue laws of the state.
“(5) Those in which the Railroad Commission is a party.
“(6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion ■of the Supreme Court, erroneously declared the substantive law of the case, in which case the Supreme Court shall take jurisdiction for the purpose of correcting such error.”

Vernon’s Sayles’ Ann. Civ.. St. 1914, art. 1521.

It further provided (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1544) that if .upon examination of the petition for writ of eri'or the Supreme Court should find the case to be one of which it might take jurisdiction, and that it came within one or more of the specified classes, the court should grant the writ for the purpose of deciding the question concerning which the difference existed, or of correcting the erroneous decision and rendering such judgment as might result from a correct decision thereof.

The certificate recites facts which show that the judgment of the Court of Civil Appeals in this case was not conclusive under the provisions of article 1591 of the Revised Statutes. The case was, therefore, one of which the Supreme Court, upon sufficient application, might have taken jurisdiction. The applies,tion for writ of error is not in the record submitted to this court and we do not know what specific rulings of law' by the Court of Civil Appeals were complained of therein. It is apparent from even a casual consideration of the classes of cases enumerated in the statute that it might frequently occur that honest differences of opinion would exist among practicing lawyers, whether a particular ease did or did not come ufithin one or more of the specified classes, and that in-such cases it would require the exercise of the judicial discretion of the Supreme Court to determine such question. The Supreme Court is the exclusive judge of its own jurisdiction. 3 C. J. § 128, pp. 371, 372, and authorities there cited.

Article 1559 of the Revised Statutes, so far as involved in the question under consideration, is as follows:

“In cases which are, by the Supreme Court, or Court of Civil Appeals, reversed and remanded, no mandate shall be taken out of either of said counts and filed in the court wherein said cause originated, unless such mandate shall be so taken out within the period, of twelve months after the rendition of final judgment of the Supreme Court, or Court of Civil Appeals, or the overruling of a motion for rehearing.”

Since the question here under consideration was certified to the Supreme Court, that court has held that the evident purpose of said article was to allow 12 months from the rendition of a final judgment for the issuance of the mandate, and that a judgment of a court of civil appeals was not such a judgment as long as it was subject to review by the Súpreme Court. That court further held that, when a writ of error was applied for, the 12 months allowed by such statute began to run from the date of the judgment of the Supreme Court denying the writ. Dignowity v. Court of Civil Appeals, 110 Tex. 613, 210 S. W. 505, 223 S. W. 165.

The defendant does not question the holding in that case, but contends that it is not applicable because plaintiff’s application for the writ of error was not refused, but was dismissed for want of jurisdiction. We do not think such distinction tenable. The statute provides that any person desiring to sue out a writ of error before the Supreme Court shall prepare his petition therefor, and file the same with the clerk of the Court of Civil Appeals, within 30 days of the overruling of the motion for rehearing; and that the clerk of that court shall «forward the same, together with the original record and certified copies of the orders of that court, to the clerk of the Supreme Court. R. S. arts. 1540-1542.

When plaintiff in -good faith prepared and filed his application for writ of error, he invoked the jurisdiction of the Supreme Court to determine whether it could or would review the judgment of the Court of Civil Appeals. Such application was not a pul-lity as contended by defendant. So long as it wás pending the judgment of the Court of Civil Appeals lacked the finality necessary to start the statute to running. No motion for rehearing having been filed, the judgment of the Supreme Court dismissing the application for lack of jurisdiction was the final judgment of that court in the cause. Frank v. Tatum, 87 Tex. 204, 208, 25 S. W. 409.

The Legislature in 1892, as a part of the original act defining the jurisdiction of the Supreme Court and regulating the practice therein under 'the constitutional amendment of 1891, expressly authorized the Supreme Court to make and promulgate suitable rules and regulations for carrying the provisions of such act into effect. The Supreme Court, in the exercise of that authority, made and published rule 66 for the Courts of Civil Appeals (142 S. W. xvi), which rule is as follows:

“Upon the presentation to him of an application for a writ of error, the clerk of the Court of Civil Appeals shall withhold the mandate until properly advised of the disposition of the case by the Supreme Court.”

This rule, by its terms, applies to all applications for writs of error, regardless of their sufficiency, and regardless of the grounds on which a review of the judgment of the Court of Civil Appeals may be sought. It is a general order by the Supreme Court staying the issuance of the mandate in all such cases, and is in effect a construction of article 1559 by that court in harmony with its holding in the case of Dignowity v. Court of Civil Appeals, supra, and contrary to the contention urged by the defendant herein.

We, therefore, recommend that the first question submitted by the Court of Civil Appeals be answered in the affirmative.

Since the second question submitted is predicated upon the possibility of a negative answer to the first question, it is unnecessary to consider the same.

CURETON, C. J.

The opinion of the Commission of Appeals, answering certified questions, is adopted, and ordered certified to the Court of Civil Appeals. 
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