Glenn v. McCarty, 7275.

• Decision Date: 08 December 1937
• Docket Number: No. 7275.,7275.
• Parties: GLENN et al. v. McCARTY et al.
• Court: Texas Supreme Court

110 S.W.2d 1148

GLENN et al. v. McCARTY et al.

No. 7275.

Supreme Court of Texas.

December 8, 1937.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

On motion for rehearing.

Motion for rehearing overruled.

For former opinion, see 107 S.W.2d 363.

Bean & Bean, of Lubbock, and Jno. B. Daniel, of Temple, for plaintiffs in error.

Vickers & Campbell, of Lubbock, for defendants in error.

SHARP, Justice.

This cause was reversed and remanded by the Court of Civil Appeals. 103 S.W.2d 1098. The application for writ of error was dismissed on the ground that it did not show that a motion for rehearing had been filed in the Court of Civil Appeals. (Tex. Sup.) 107 S.W.2d 363, 364. A motion for leave to amend the application has been filed.

The frequency with which this court is called upon to dismiss applications for writs of error, on the ground that such applications fail to show that a motion for rehearing has been filed in the Court of Civil Appeals raising the points on which the writs are asked, impels this court again to call attention to the rules relating to this subject.

From time to time the Legislature has passed new laws and modified old laws, and this court has adopted new rules and modified prior rules, supplementing the statutes, relating to appellate procedure, in order to meet new conditions. The statutes and the rules have long specified certain essential requirements regarding the filing of an application for writ of error, as follows: (1) That it be addressed to the Supreme Court; (2) that it state the nature of the case and the grounds upon which the writ of error is based; (3) that it show that the Supreme Court has jurisdiction of the case; (4) that it show that the applicant has filed a motion for rehearing in the Court of Civil Appeals; and (5) that the application must be filed with the clerk of the Court of Civil Appeals within 30 days from the overruling of the motion for rehearing.

To expedite the disposition of cases appealed to the Supreme Court, it is necessary that counsel comply with certain essential rules of procedure in applying for writs of error. Such rules have long been in force. All questions sought to be reviewed must be embraced in the application for writ of error, or they will be considered as waived. This court, as early as 1892, in the case of Southern Pacific Co. v. Haas, 85 Tex. 401, 20 S.W. 586, speaking through Chief Justice Stayton, in discussing rules relating to applications for writs of error, held that, because no motion for rehearing, presenting the questions on which error was asserted, was filed in the Court of Civil Appeals, the application for writ of error was dismissed; and, in discussing the reasons for the rule, said:

"The application for writ of error in this case shows that no motion for rehearing was made in the court of civil appeals, and it further shows that the writ is sought for the purpose of having a decision by this court of a question presented in that, which is in no manner discussed or considered in the opinion of that court, although presented by assignments of error.

"The rules adopted by this court in relation to applications for writs of error provide that `the petition, in addition to the requisites prescribed by statute, shall show that the applicant has made a motion for rehearing in the court of civil appeals, presenting distinctly all the points on which a writ of error is asked, and that the motion has been overruled.'

"The purposes of this rule are to require parties to use all diligence to have errors into which a court of civil appeals may have fallen corrected in that court, to present sharply to this court the very question upon which it is claimed that court erred, and to avoid unnecessary delay in the final disposition of causes, which must result if a writ of error be granted by this court on account of a matter which the court of civil appeals would presumably have promptly corrected, if erroneous, had it been called to its attention by proper motion. * * *

"All litigants must take notice of the rules of courts in which they have business."

The foregoing rule was also reiterated in the case of Sams v. Creager, 85 Tex. 497, 22 S.W. 399.

In 1895 the rules relating to procedure in the Supreme Court were amended. 87 Tex. xxxvii. Rule 1, which applied to the essential matters to be embraced in the application for writ of error, among other things, contained the following provision: "A motion for a rehearing must be made in the Court of Civil Appeals and overruled before applying for the writ of error."

The volume of business coming to this court has increased materially since the foregoing rule was adopted. When compared with former statutes, it will be seen that the Legislature has lessened the number of cases on which judgments of the Courts of Civil Appeals shall be conclusive. See article 1821, Revised Civil Statutes, as amended by Acts 1929, c. 33, § 1 (Vernon's Ann.Civ.St. art. 1821). The Legislature has also increased the number of cases over which the Supreme Court shall have appellate jurisdiction. See article 1728, Revised Civil Statutes, as amended by Acts 1927, c. 144, § 1 (Vernon's Ann.Civ.St. art. 1728). Effective January 1, 1931, certain changes in the rules for the Supreme Court were adopted. 121 Tex. 745. We set out below the pertinent parts of rule 1 applicable to the question here presented:

"1. In view of the great increase in the business of the Supreme Court, and the necessity of the Court receiving the earnest and frank co-operation of counsel in the disposition of its business, the Court prescribes that."

Then follows the rule governing the manner in which an application must be prepared. (See subdivisions (a) and (b) of the rule.) The following requirements are also embodied in the rule:

"(c) It [the application] shall present a question of law decided by a Court of Civil Appeals of which the Supreme Court has jurisdiction as defined by Article 1728 of the Revised Civil Statutes of Texas of 1925 as amended by Chapter 144 of the Acts of the Fortieth Legislature, approved March 25, 1927, and no other questions will be considered; but questions of law arising under two or more of the subdivisions of that Article may be presented in the same application under separate assignments.

"(d) The decision of or ruling sought to be reviewed must have been assigned as error in the motion for new trial in the trial court, if such motion was made or required by law to be made, and such error must have been assigned and presented in the Court of Civil Appeals and in a motion for rehearing in the latter court. If the decision or ruling sought to be reviewed originated in the Court of Civil Appeals it must have been presented in the motion for rehearing in that court. The application shall state that the particular decision or ruling was assigned as error in the motion for rehearing in the Court of Civil Appeals."

It is settled that, where a statute prescribes a rule of procedure, such rule so prescribed in the statute will control. And it is contended that the enactment of H. B. No. 1015 in 1931 (chapter 149 [Vernon's Ann.Civ.St. arts. 1740, 1741]), amending articles 1740 and 1741 of the Revised Civil Statutes, abrogated the rule requiring motions for rehearing to be filed in the Court of Civil Appeals. If the act just mentioned does override such rule, then such motion for rehearing need not be filed in the Court of Civil Appeals. This court has repeatedly recognized that the Legislature has the power, under the Constitution, to enact rules relating to the right of appeal, and modify them at will. But if the Legislature has provided no mode of procedure for appealing cases, the Supreme Court has authority to adopt such rules for that purpose. Stillman v. Hirsch, 128 Tex. ___, 99 S.W.2d 270. The applicable part of ...