
    NESBITT et al. v. CONNER et al.
    
    (No. 543-3631.)
    (Commission of Appeals of Texas, Section A.
    May 14, 1924.)
    Courts &wkey;j247(7) — Certification of question of law to Supreme Court held not required.
    Certification to Supreme Court of question of law was not required on theory that plea of res judicata bad been determined on merits tn manner conflicting -with other decisions, where opinion on rehearing showed plea was held insufficient an.d not determined on merits.
    Application for mandamus by G. G. Nes-bitt and another to be directed to T. H. Conner and others.
    Writ denied.
    Goree, Odell & Allen, of Port Worth, for plaintiffs.
    Sam J. Hunter, of Port Worth, for defendants.
    
      
      Rehearing denied June 28, 1924.
    
   GERMAN, P. J.

Relators, G. -G. Nesbitt and A. L. Camp, filed petition for mandamus in the Supreme Court January 11, 1922, to require the honorable Court of Civil Appeals for the Second Supreme Judicial District to certify certain questions of law to the Supreme Court in the case of Smith v. Nesbitt et al. A full statement of all questions involved will be found in the reported case. 235 S. W. 1104-1108. There were two main questions disposed of on appeal: One of limitations and the other of res adjudieata. At the time petition for mandamus was filed, counsel for relators were under the impression that no opinion had been written on their motion for rehearing in the Court of Civil Appeals, and it is so alleged in the petition. On the assumption that the Court of Civil Appeals had considered their plea of res adjudieata on its merits and had decided the questions relating thereto contrary to their contentions, without written opinion, they set out in their petition allegations of a conflict between the decision of the court in this case on the questions of res adjudieata and the decisions of other Courts of Civil Appeals in numerous cases. However, the Court of Civil Appeals did prepare and file written opinion on relators’ motion for rehearing (235 S. W. 1107, 1108), in which it is held that the plea was insufficient, and same was not considered on its merits. The petition for mandamus do^s not allege that this opinion is in conflict with any other decision. This being true, there are no grounds alleged or shown in the petition which would authorize a mandamus. However erroneous the judgment of the Court of Civil Appeals on the question of the sufficiency of the plea might have been, unless there was a conflict with some other decision in this particular, it would furnish no reason for requiring the question to be certified.

We recommend that the petition for mandamus be denied.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted, and mandamus refused.  