Classen v. Elmendorf
| Decision Date | 21 December 1896 |
| Citation | 38 S.W. 160 |
| Parties | CLASSEN v. ELMENDORF et al. |
| Court | Texas Supreme Court |
This cause came to us upon a certificate of dissent. On the 24th day of June, 1896, the court of civil appeals filed their opinion, in which it was held that there was error in the judgment of the trial court, but in which it was also ruled that the appellees should be allowed 10 days within which to file a remittitur for certain damages recovered in the court below; that, in the event the remittitur should be filed within that time, the judgment should be reformed and affirmed; but that otherwise it should be reversed, and the cause remanded. To this judgment there was a dissent. On the 23d day of September thereafter, no remittitur having been filed (as is to be presumed), judgment was entered by the court of civil appeals reversing the judgment of the district court, and remanding the cause. Appellees' motion for rehearing having been overruled, the court, at their instance, certified the point of dissent to this court for our decision. On a former day we decided the question against the appellees, and ordered our opinion to be certified to the court of civil appeals. A motion is now filed for rehearing in this court, in which we are asked to permit the appellees to remit the sum specified in the opinion of the court of civil appeals, and affirm the judgment of the district court. Article 1040 of Revised Statutes provides that: "When any one of said courts of civil appeals shall in any cause or proceeding render a decision in which any one of the judges therein sitting shall dissent as to any conclusions of law material to the decision of the case said judge shall enter the grounds of his dissent of record, and the said court of civil appeals shall, upon motion of the party to the cause, or on its own motion, certify the point or points of dissent to the supreme court." It is further provided by article 1042 that, "after the question is decided the supreme court shall immediately notify the court of civil appeals of their decision, and the same shall be entered as the judgment of said court of civil appeals." It thus appears that upon a certificate of dissent the jurisdiction of this court over a case is restricted to a determination of the very point or points upon which the judges of the court of civil appeals have disagreed. We have no power to either...
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...upon a certificate of dissent, with the result that we adopted the opinion of the majority of the court. 90 Tex. 204, 37 S. W. 1062, and 38 S. W. 160. That opinion is reported in 37 S. W., on page 245. The suit was brought by the plaintiff in error to recover of defendants in error for serv......