Fidelity & Casualty Co. of New York v. Allibone
| Decision Date | 29 April 1897 |
| Parties | FIDELITY & CASUALTY CO. OF NEW YORK v. ALLIBONE. |
| Court | Texas Supreme Court |
Action by Emma F. Allibone against the Fidelity & Casualty Company of New York. A judgment in favor of plaintiff was affirmed by the court of civil appeals (39 S. W. 632), and defendant applies for a writ of error. Denied.
Crawford & Crawford and Humphreys & McLean, for applicant. W. S. Simkins, for appellee.
Since the filing of the application for the writ of error in this case, counsel for the appellee, desiring, as he says, to eliminate the federal question involved, has offered to remit in this court so much of the recovery as was given for attorney's fees and damages under the statute. While, upon presentation of an application, we have jurisdiction to determine whether or not the writ of error should be granted, we have no jurisdiction over the case until the writ be granted. Hence, at this stage of the proceeding we have no power to accept a remittitur entered with a view to eliminating error in the judgment. Taking the case as presented upon the application, without reference to the attempted remittitur, we find no error in the proceedings or judgment. As to the constitutional question, we agree with the court of civil appeals in holding that it is distinguishable from that passed upon by the supreme court of the United States in Railway Co. v. Ellis, 17 Sup. Ct. 255. If appellee still desires to eliminate the federal question by filing a remittitur, she must remit in the court of civil appeals. The application for the writ of error is refused.
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