
    WAGNER et al. v. GARRETT, Clerk of Court, et al.
    (No. 4182.)
    (Supreme Court of Texas.
    Feb. 18, 1925.)
    1. Clerks of courts <@=>67 — Duty of clerk of Court of Civil Appeals to file and forward to Supreme Co-urt any document pertaining to appeal.
    It is mandatory duty of clerk of Court of Civil Appeals, as ministerial officer, to file and forward to Supreme Court to which addressed, writ of error or any document tendered to him, pertaining to appeal in cause pending in that court, whatever his opinion as to Supreme Court’s jurisdiction.
    2. Appeal and error <@=>345(2) — Application for writ of error more than 30 days after overruling of motion for rehearing must be dismissed. .
    Application for writ of error, tendered to clerk of Court of Civil Appeals more than 30 days after it overruled motion for rehearing must be dismissed by Supreme Court for want of jurisdiction.
    3. Mandamus <@=>(6(1) — Will not issue to compel clerk of Court of Civil Appeals to send to Supreme Court application for writ of error, which would be dismissed.
    Where application for writ of error, addressed to Supreme Court, would be dismissed for lack of jurisdiction, though relators are entitled to writ of mandamus to compel clerk of Court of Civil Appeals to forward it, writ will not issue.
    Original petition for mandamus by Mrs. Mamie Wagner and others to compel H. L. Garrett, Clerk of the Court of Civil Appeals, and others to file and forward to Supreme Court application for writ of error to review judgment, reversing judgment for relator and remanding cause (262 S. W. 902).
    Writ denied.
    See, also, 269 S. W. 1024.
    Louis, Campbell & Nicholson, of Houston, Thompson, Knight, Baker & Harris, and Car-den, Starling, Carden, Hemphill & Wallace, all of Dallas, for plaintiffs in error.
    Garrison & Watson, of Houston, for defendants in error.
   PIERSON, J.

On December 14, 1923, in the case of Texas & New Orleans Railroad Co. v. Mrs. Mamie Wagner et al., judgment was entered in the honorable Court of Civil Appeals for the Eirst Supreme Judicial District, reversing the judgment of the district court theretofore rendered, and remanding the cause for a new trial. Associate Justice Graves filed a dissenting opinion. The motion for rehearing of appellees, Mrs. Mamie Wagner et al., was overruled by said Court of Civil Appeals on February 28, 1924, Justice Graves again dissenting.

Thereafter, on March 6, 1924, Chief Justice Pleasants filed an opinion further supporting the majority opinion. On March 13th following, Associate Justice Graves filed another opinion further elaborating his views. Prior to April 5, 1924, appellees had filed no further motion for rehearing based upon the subsequent opinions of Judge Pleasants and! Judge Graves.

On April 5, 1924, more than 30 days after the motion for rehearing had been overruled, appellees, relators here, tendered to respondent Hon. H. D. Garrett, clerk of the said Court of Civil Appeals, an application for a writ of error, addressed to the Supreme Court. Respondent Garrett declined and refused to file said application for writ of error, so addressed to this court, ’became in Ms judgment, as argued in his answer, this court has no jurisdiction over same. Relators pray for a writ of mandamus to require respondent Garrett to file and forward their said application for writ of error to-this court for its action thereon.

The foregoing is'a sufficient statement for the purpose of this opinion.

As a ministerial officer, it is the mandatory duty of the respondent Garrett, as clerk of the honorable/Court of Civil Appeals for the First Supreme Judicial District, to-file and forward to this court any document tendered to him appertaining to an appeal in any cause pending in that court which is addressed to the Supreme Court. Respondent Garrett could not determine for this court its jurisdiction over this case, nor pass on the points of legal controversy raised by the contending parties and their attorneys in relation thereto for this court.

The opinion of this court in the case of John J. Reeves v. Hon. E. T. Roseborough, Clerk of the Court of Civil Appeals for the Sixth Supreme Judicial District, et al., delivered January 7, 1925 (267 S. W. 973), together with this decision, clearly states the views of this court upon the principles involved and the duties of these ministerial officers, and should be sufficient in the future to obviate all similar delays, confusion, and unnecessary labor in regard to applications for writs of error.or other papers addressed to this court, and to direct these officers to promptly forward to this court any and all applications, documents, and papers of any character, which are filed for and addressed to this court.

Upon the facts, as disclosed by relators' petition for mandamus, the application for writ of error would have to be dismissed for want of jurisdiction. Long v. Martin, 112 Tex. 365, 247 S. W. 827, and cases there cited; Vinson v. Carter, 106 Tex. 273, 166 S. W. 363; Henningsmeyer v. Bank, 109 Tex. 116, 195 S. W. 1137, 201 S. W. 652.

Inasmuch as under our own adjudication the application for writ of error would be dismissed though relators are entitled to the writ of mandamus to have it sent to this court, yet for that reason the writ of man-daihus will not issue. Costs are awarded against respondents Garrett and Texas & New Orleans Railroad Company. 
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