American Nat. Bank v. Hall

• Citation: 265 S.W. 378
• Decision Date: 15 October 1924
• Docket Number: (No. 486-3985.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: AMERICAN NAT. BANK OF WICHITA FALLS et al. v. HALL, Chief Justice, et al.
• Court: Supreme Court of Texas

265 S.W. 378

AMERICAN NAT. BANK OF WICHITA FALLS et al. v. HALL, Chief Justice, et al.

(No. 486-3985.)^*

Commission of Appeals of Texas, Section B.

October 15, 1924.

Original proceeding in mandamus by the American National Bank of Wichita Falls and another against R. W. Hall, Chief Justice of the Court of Civil Appeals, Amarillo District, and others. Writ refused.

See, also, 250 S. W. 279.

Bonner, Bonner & Sanford, of Wichita Falls, for plaintiffs.

Kay, Akin & Kenley, of Wichita Falls, for corespondent R. L. Hoggerton.

STAYTON, J.

Judgment against relators having been rendered after a trial by jury and affirmed by the Court of Civil Appeals at Amarillo (250 S. W. 279), they have applied for a writ of mandamus upon the ground that, between the opinion of the latter court and other opinions, cited in their petition, there are conflicts, as to which, under R. S. art. 1623, certain questions should be certified to the Supreme Court. One of the relators is a banking association, which clearly appears to be a stakeholder of the fund in litigation and disinterested in the result. The other one, G. C. Johnson, is a real party, and will therefore be viewed as the sole proponent of the petition.

The first opinion that is alleged to present a conflict emanated from the Court of Civil Appeals at Amarillo, and another, from the Commission of Appeals in a case where only the judgment that was recommended was adopted by the Supreme Court. As the law imposes no duty upon a Court of Civil Appeals to certify questions in one of its opinions which may be variant from its own opinion in another case or from an opinion of the Commission of Appeals, mandamus cannot be predicated upon conflicts of such nature.

A third ground in the petition is based on the opinion in the present case upon the first motion for rehearing, which, in the consideration of a subsequent motion for rehearing, was expressly "set aside and withdrawn," and for that reason does not come within the wording of the statute; it was not adhered to, and must be treated as if it were never rendered. Smith v. Conner, 98 Tex. 437, 84 S. W. 815; Mixon v. Wallis (Tex. Civ. App.) 161 S. W. 911.

The further averment is made that a conflict appears between the opinion below and that of the Court of Civil Appeals at San Antonio in the case of San Antonio Traction Co. v. Badgett, 158 S. W. 805, touching the practice of permitting the court reporter's notes to be read to the jury.

In the present case the jury, after their retirement, went back into open court and asked that a portion of the testimony of one witness, as noted by the reporter, be read to them. Their request was granted over relator's objection that a part, as distinguished from the entirety, of the testimony, should not be reproduced. The Court of Civil Appeals ruled that the action of the trial court was not reversible error because the statute upon the subject was directory only and the practice within the discretion of the court, and because no harm appeared by reason of its exercise in this instance.

But in the Badgett Case quite another ruling occurred and the circumstances were dissimilar. The jury's request for a rehearsal of testimony was not granted, but was refused, and the Court of Civil Appeals held that the latter ruling was not error because there was no statute authorizing the practice but one providing for a different practice; and added that it might not have involved reversible error if the trial court had required the stenographer's notes to be read.

One of these opinions depended upon the question of whether taking a certain step in a trial different from that supplied by statute in such cases was reversible error, in the absence of objection raising the point and in the absence of a showing of injury; the other, the question of whether the refusal to allow such a step was error. As the questions in the two cases were different, the opinions upon them fail to reveal such a conflict as the statute covers. From the holding, that it is not error for a trial judge to refuse to permit a certain novel step in procedure, it cannot follow that it is material and reversible error for him to do the opposite thing; that is, allow that procedure over an objection not leveled at the method of it, but at the extent of the testimony reproduced and, moreover, causing no injury to the objecting party.

Only one other conflict is claimed. It is upon the basis of Kansas City, etc., Ry. Co. v. Weaver (Tex. Civ. App.) 191 S. W. 591, and relates to a ruling upon the sufficiency of the plaintiff's petition in the trial court.

The present case was one where an allegation, to the effect that an abstract showing that a good and merchantable title had been tendered, was necessary to the statement of a cause of action in plaintiff's behalf. Attached to the petition was a copy of the contract sued on, which, among other things, required an abstract showing that nature of title; and the allegations referred to this as an exhibit, and continued, that "abstract * * * was delivered * * * and defendant * * * accepted said abstract." Defendant presented to the court no demurrer of any kind. As stated by the Court of Civil Appeals, his original answer had contained a general demurrer, but, as shown by relator and by the respondents who have appeared, his amended answer upon which he went to trial contained no demurrer of any nature but commenced with an admission, under rule 31 for district and county courts, that plaintiff had a good cause of action as set forth in his petition, except so far as it might be defeated, in whole or in part, by the facts of the answer constituting a good defense and established at the trial. There is nothing to show that this admission was entered of record as required by the rule. It probably was not. The remainder of the amended answer began with the following vague but intelligible clause immediately after the admission, "and in this connection, the defendant avers the facts of the cause to constitute a good and valid defense to plaintiff's cause of action, and that the plaintiff is not entitled to recover anything herein...