Bain Peanut Co. of Texas v. Pinson & Guyger

• Decision Date: 29 January 1931
• Docket Number: Motion No. 9436; Appeal No. 17123.
• Citation: 34 S.W.2d 1090
• Parties: BAIN PEANUT CO. OF TEXAS v. PINSON & GUYGER.
• Court: Texas Supreme Court

Page 1090

34 S.W.2d 1090

BAIN PEANUT CO. OF TEXAS v. PINSON & GUYGER.

Motion No. 9436; Appeal No. 17123.

Supreme Court of Texas.

January 29, 1931.

Action by Pinson & Guyger against the Bain Peanut Company of Texas. On defendant's motion for an order nunc pro tunc correcting a prior order dismissing its application for a writ of error.

Motion overruled.

W. A. Keeling, of Austin, and Bryan, Stone, Wade & Agerton and B. G. Mansell, all of Fort Worth, for plaintiff in error.

Callaway & Callaway, of Brownwood, for defendants in error.

GREENWOOD, J.

Plaintiff in error has filed a motion for an order nunc pro tunc correcting the order heretofore entered by this court dismissing its application for a writ of error.

It is true, as contended by plaintiff in error, that its failure to file an application for writ of error within thirty days from July 12, 1929, on which date the Court of Civil Appeals vacated its initial judgment and entered a more onerous judgment against plaintiff in error (19 S.W.(2d) 203), was not regarded as defeating the jurisdiction of the Supreme Court to revise by writ of error such more onerous judgment. In our opinion, the Court of Civil Appeals clearly acted within the scope of its lawful authority on July 12, 1929, when, on motion seasonably filed, it vacated its initial judgment. There then remained subject to review or enforcement only the judgment of July 12, 1929. Whatever errors were to be corrected were those arising from that judgment on the rehearing in the Court of Civil Appeals. The rule is established in Texas that a party's petition for writ of error to the Supreme Court must be filed within thirty days from the date on which his motion for rehearing was overruled in the Court of Civil Appeals. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279; Vinson v. Carter & Brother, 106 Tex. 274, 166 S. W. 363; Henningsmeyer v. Bank, 109 Tex. 117, 195 S. W. 1137, 201 S. W. 652. Nevertheless, each time the Court of Civil Appeals, on motion or motions duly filed, validly vacates its previous judgment or judgments and substitutes therefor a different valid judgment against a party, he is thereby entitled to seek correction, through rehearing, of such differerent judgment, and it is not compulsory that he invoke the jurisdiction of the Supreme Court earlier than within thirty days from the overruling of his last motion for rehearing. Our statutes contemplate that a case should be reviewed by the Supreme Court at the instance of one party, not piecemeal, but as an entirety. Hence it is only when the jurisdiction of the Court of Civil Appeals has terminated by overruling a party's permissible motion or motions for...