Hudson v. St. Louis Southwestern Ry. Co.

• Decision Date: 04 June 1927
• Docket Number: (No. 757-7620.)
• Citation: 295 S.W. 577
• Parties: HUDSON et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
• Court: Texas Supreme Court

Page 577

295 S.W. 577

HUDSON et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.

(No. 757-7620.)

Commission of Appeals of Texas, Section B.

June 4, 1927.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

On motion for rehearing. Motion overruled.

For former opinion, see 293 S. W. 811, modifying 286 S. W. 766, which superseded 282 S. W. 257.

Cone Johnson and Edwards & Hughes, all of Tyler, for plaintiffs in error.

E. B. Perkins, of Dallas, and Marsh & McIlwaine, of Tyler, for defendant in error.

SPEER, J.

We are asked to grant a rehearing herein because the opinion of the Commission was written by a judge who was not present and did not sit with the commission when the case was submitted on oral argument, the contention being that, while there is no rule to that effect, nevertheless, the opinion of a court should not be written by a judge who was not present at the submission upon oral arguments. This complaint involves a mild indictment of our system, inasmuch as the law contemplates, in all cases referred to the Commission of Appeals, the Supreme Court will decide the case without having heard the oral arguments. The criticism of counsel may be a just one, but it evidently is not a ground for rehearing. It is wholly a matter for legislative consideration. The question at last is whether or not the court has erred in its holding.

It is next complained that, since the Court of Civil Appeals, having rendered the judgment for the appellant, failed to pass upon certain assignments of error, the Supreme Court should not remand the cause to the trial court, but rather should remand it to the Court of Civil Appeals, with directions for that court to pass upon such assignments. The rule is not as contended by defendant in error. In Southern Pacific Co. v. Walters, 110 Tex. 496, 221 S. W. 264, Chief Justice Phillips, speaking to this very question of practice, said:

"While the assignment was entitled to consideration [by the Court of Civil Appeals] the case should not be remanded for that purpose if the assignment is clearly without merit, and the question is one not exclusively within the jurisdiction of the Court of Civil Appeals."

And in Harris County v. Charlton, 112 Tex. 26, 243 S. W. 463, Justice Pierson said:

"Under our holding in the case of Holland v. Nimitz et al., 111 Tex. 419, 239 S. W. 185, * * * it is within our jurisdiction and becomes our duty to pass upon `all questions of law assigned in his petition by the losing party in the Court of Civil Appeals,' and upon `all assignments of the prevailing party in the Court of Civil Appeals presenting questions of law, to ascertain what judgment ought to have been rendered in that court.' `The Supreme Court will not refer assignments presenting questions of law within its jurisdiction back to the Court of Civil Appeals simply because such court failed to determine same; but, in the interest of speedier termination to litigation, the Supreme Court will itself determine the assignments.'"

The assignments referred to in the motion raise questions of law over which the Supreme Court has jurisdiction, but to our minds they are so plainly without merit that a...