Henningsmeyer v. First State Bank of Conroe

• Decision Date: 06 March 1918
• Docket Number: (No. 3982.)
• Citation: 201 S.W. 652
• Parties: HENNINGSMEYER et al. v. FIRST STATE BANK OF CONROE.
• Court: Texas Supreme Court

Page 652

201 S.W. 652

HENNINGSMEYER et al. v. FIRST STATE BANK OF CONROE.

(No. 3982.)

Supreme Court of Texas.

March 6, 1918.

On motion for rehearing. Rehearing denied.

For former opinion, see 195 S. W. 1137.

PER CURIAM.

Rehearing denied.

HAWKINS, J. (dissenting).

The grounds upon which the application for a writ of error was dismissed by this court for want of jurisdiction are sufficiently shown in the opinion of Chief Justice Phillips and my dissenting opinion, 195 S. W. 1137, 1138, not yet officially reported.

Plaintiffs in error filed here a motion for a rehearing, which was overruled, this writer dissenting. Said motion is supported by an original affidavit by Associate Justice A. G. Brooke, dated October 4, 1917, subsequent to said order dismissing said application. From said affidavit the following is copied:

"That he is an associate justice of the Court of Civil Appeals of the Ninth Supreme Judicial District of Texas, sitting at Beaumont, and has been such associate justice since the creation and organization of such court; that he prepared and filed the opinion of such court in the case of Fred and Mary Henningsmeyer v. First State Bank of Conroe, reported in volume 192, pages 286 to 291, of the Southwestern Reporter; that when said amended or second motion for rehearing was filed by the appellants in said cause the said motion was considered by him upon its merits; that while it is a fact that one of the reasons that induced him to vacate and set aside its original order overruling appellant's original motion for rehearing was to preserve the right to appellants to have our judgment affirming the decree of the district court reviewed by the Supreme Court, yet it is also true that said second motion for rehearing was considered by him upon its merits, and the authorities cited by the appellants in support of their amended motion for rehearing were carefully re-examined by affiant, and said motion considered upon its merits and in good faith by the court."

It will be observed that, while conceding that one of the reasons which induced the affiant to join in setting aside the order of that court overruling appellant's original motion for a rehearing was to extend the date from which should be reckoned the period of time allowed by law for filing the petition for the writ of error, said affiant, the author of the opinion of the Court of Civil Appeals in this case, unequivocally swears, nevertheless, that the amended or second motion for rehearing was considered by the affiant "upon its merits," and that the authorities cited in support of it "were carefully re-examined by affiant." The last two statements tend strongly to prove good faith on the part of that court. And to that Associate Justice Brooke added, under oath, the positive declaration that said amended or second motion was "considered upon its merits and in good faith by the court." To rebut said affidavit there was nothing before this court except the facts and recitals mentioned in said cited opinions.

The last-quoted declaration of said affidavit is, I think, of controlling force. Of course, that ...