Dallas Railway & Terminal Co. v. Watkins

• Decision Date: 23 October 1935
• Docket Number: Motion No. 12142.
• Citation: 86 S.W.2d 1081
• Parties: DALLAS RAILWAY & TERMINAL CO. v. WATKINS et al.
• Court: Texas Supreme Court

Page 1081

86 S.W.2d 1081

DALLAS RAILWAY & TERMINAL CO. v.WATKINS et al.

Motion No. 12142.

Supreme Court of Texas.

October 23, 1935.

Motion by the Dallas Railway & Terminal Company for leave to file a petition for writ of mandamus against Hon. Royall R. Watkins, as district judge of Ninety-fifth judicial district of Dallas county, requiring him to enter judgment for relator in a case pending in that court wherein relator was defendant.

Motion denied without prejudice.

Worsham, Rollins, Burford, Ryburn & Hincks and Autrey Norton, all of Dallas, for relator.

HICKMAN, Commissioner.

Relator by its motion seeks leave of this court to file a petition for a writ of mandamus requiring and commanding Hon. Royall R. Watkins, as district judge of the Ninety-fifth judicial district of Dallas county, to enter judgment for the defendant in cause No. 100457-A/D, pending in that court, wherein B. H. Duncan and wife, Ina Mae Duncan, are plaintiffs, and relator is defendant.

It is made to appear that Judge Watkins refused to enter judgment on the verdict of the jury and declared a mistrial for the sole and only reason that the answers of the jury to the special issues are in irreconcilable conflict and will not support a judgment for defendant.The claim of relator is that the answers are in no wise conflicting, and that it is entitled to judgment on the verdict.

This court has the jurisdiction to issue a writ of mandamus to compel a district judge to proceed to judgment in a cause.R. S. 1925, art. 1734;Gulf, C. & S. F. R. Co. v. Canty, 115 Tex. 537, 285 S. W. 296;Cortimeglia v. Davis, 116 Tex. 412, 292 S. W. 875.It is equally certain that Courts of Civil Appeals have the power to issue such writs.R. S. 1925, art. 1824, as amended byActs 1929, c. 33, § 1(Vernon'sAnn. Civ. St. art. 1824).Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063;Allen v. Strode(Tex. Civ. App.)62 S. W.(2d) 289.

There is no showing made that relator has applied to the Court of Civil Appeals for the relief which it seeks here.Owing to the great volume of business coming before this court, it is manifest that our judicial system can operate more efficiently if litigants are required to present applications of this nature to the Court of Civil Appeals in the first instance.

The language of our Chief Justice in Houtchens v. Mercer, 119 Tex. 244, 27 S.W. (2d) 795, 796, may appropriately be reproduced here:

"Since we have concluded that the Court of Civil Appeals has the power to issue the writ of mandamus, and such other writs ancillary thereto as may be necessary to protect the relator in every right he has under the law, it is the rule that we should ordinarily decline to take jurisdiction under our original power to issue the writ of mandamus until the relator has applied to the Court of Civil Appeals for such relief, if...