Gulf, C. & S. F. Ry. Co. v. Scott

• Decision Date: 01 December 1894
• Citation: 28 S.W. 457
• Parties: GULF, C. & S. F. RY. CO. v. SCOTT.
• Court: Texas Court of Appeals

28 S.W. 457

GULF, C. & S. F. RY. CO. v. SCOTT.

Court of Civil Appeals of Texas.

December 1, 1894.

On rehearing. For former opinion, see 27 S. W. 827.

J. W. Terry and Chas. K. Lee, for appellant. W. B. Abney, for appellee.

FISHER, C. J.

This court reversed this case for certain reasons stated in the original opinion, and the appellant, although content with such disposition, asks us, in its motion for rehearing, to pass upon other questions that we declined to discuss in the original opinion. Several questions were presented in the brief of appellant that we did not discuss in the opinion in disposing of the case. From this fact the appellant, as counsel intimates in his motion for rehearing, concludes that we did not pass upon these questions. In this he is mistaken. We passed upon all questions presented in his brief in our consultation upon the case, and we agree with all the rulings of the trial court except in those particulars pointed out in the original opinion. Cases like this are often before this court, in which a great many points for our decision are presented that we decline to discuss in the opinion in disposing of the case, and the fact that we do not discuss all of such questions does not warrant counsel in assuming that we have not passed upon the questions in consultation. A great many questions are considered and passed upon in consultation that, for good reasons, the court may decline to notice further than to state that they present no reversible error; and such was the statement made in the opinion prepared in this case with reference to the questions we are now asked to discuss. These questions were thoroughly considered in our original consultation upon the points presented in this record, but there is one question that we will further notice, as it has been so strenuously requested by appellant that we should do so. The appellant made a motion in the court below that the appellee be required to execute a bond for costs. This motion was met by an affidavit of the appellee stating his inability to comply with the request. Thereupon the appellant made a motion requiring that appellee's attorneys be required to execute a bond for costs, because, although they were not parties to the suit, they had a contingent interest in the subject-matter and in the judgment that may be recovered. The contention of appellant on this state of facts is that it was error for the court to refuse to require the attorneys of appellee to execute such a bond, contending that they, by reason of their interest in the subject-matter of the suit, were, in effect, parties to the controversy, and should have been required to have executed the bond as authorized by virtue of article 1436, Sayles' Civ. St. This question was considered, as we have said, in the original disposition of the case, and the conclusion then reached was that there was no error in the ruling of the court in this respect. A further investigation has convinced us of the...