Curlee Clothing Co. v. Hall

• Decision Date: 26 May 1933
• Docket Number: No. 1407-6044.,1407-6044.
• Citation: 60 S.W.2d 202
• Parties: CURLEE CLOTHING CO. v. HALL, Chief Justice, et al.
• Court: Texas Supreme Court

60 S.W.2d 202

CURLEE CLOTHING CO. v. HALL, Chief Justice, et al.

No. 1407-6044.

Commission of Appeals of Texas, Section B.

May 26, 1933.

Original petition on the relation of the Curlee Clothing Company for a writ of mandamus against R. W. Hall, Chief Justice, and others, to compel respondents, as members of and constituting the Court of Civil Appeals for the Seventh Supreme Judicial District, to certify to the Supreme Court the question involved in an action brought by the relator

against C. L. Wickliffe on the ground that the decision therein [38 S.W.(2d) 175] is in conflict with decisions of other Courts of Civil Appeals.

Writ granted.

Smoot & Smoot and J. R. Ogle, all of Wichita Falls, for relator.

LEDDY, Judge.

This is an original mandamus proceeding in which it is set forth in the petition for the writ that the decision of the Court of Civil Appeals for the Seventh Supreme Judicial District in the case of Curlee Clothing Company v. Wickliffe, 38 S.W.(2d) 175, is in conflict with several decisions of other Courts of Civil Appeals.

Relator's motion to certify the question involved in the above case was denied by the Court of Civil Appeals, and the Supreme Court is now asked to compel such certification by writ of mandamus.

The decision of the Court of Civil Appeals in the above case is made final by statute (Vernon's Ann. Civ. St. art. 1821); hence the mandamus must be granted if the conflict alleged in fact exists.

The question decided by the Court of Civil Appeals, about which complaint is made, arose in an appeal from an order of the county court at law of Wichita county, sustaining a plea of privilege urged by Wickliffe. It appears from the testimony taken on the hearing of the plea of privilege that Wickliffe was indebted to the Curlee Clothing Company upon an open account. The account was placed in the hands of an attorney, who notified Wickliffe that suit would be brought unless it were paid promptly. After some negotiations an adjustment was reached, by the terms of which Wickliffe agreed to pay the clothing company $200 and execute his two promissory notes for the balance of the account. The attorney for the latter company sent Wickliffe two blank forms of promissory notes, with the direction that he fill out these notes for the amount agreed upon and return them with his check for $200. A short time thereafter the notes were returned by Wickliffe to the company, properly filled out with the exception that the blanks for place of payment in the notes were left unfilled. Wickliffe, however, failed to send with said notes the agreed cash payment. Mr. Curlee's attorney, upon receiving the notes, wrote Wickliffe, calling attention to his failure to send the cash payment, and notifying him that suit would be instituted unless prompt remittance was made. His letter concluded as follows: "I note in...