Herff v. James

• Decision Date: 07 December 1893
• Citation: 24 S.W. 396
• Parties: HERFF et al. v. JAMES et al.
• Court: Texas Supreme Court

24 S.W. 396

HERFF et al. v. JAMES et al.

Supreme Court of Texas.

December 7, 1893.

Petition for mandamus by F. Herff and E. Dittmar against John H. James and others. Dismissed.

Tarleton & Altgelt, for petitioners.

STAYTON, C. J.

Plaintiffs make application for writ of mandamus to compel the judges of the court of civil appeals for the fourth supreme judicial district to certify to this court for decision a case in which there was dissent as to the qualification of one of the judges of that court. Before parties will be cited to show cause why such relief should not be granted, the petition will be looked to, in order to ascertain whether it states a cause in which this court has jurisdiction, either original or appellate. The petition in this cause simply shows that plaintiffs recovered a judgment in the district court for Bexar county against the county for $600, as damages for opening a public road over land owned by them, and that upon appeal to the court of civil appeals that judgment was reversed, and judgment rendered in their favor for only $181, with interest from a date mentioned.

The inference from the petition is that the judgment was rendered by the district court in a condemnation proceeding originating in the county commissioners' court and appealed to the district court. There is no averment showing a case over which a county court would not have either original or appellate jurisdiction; and, in the absence of such averments, it cannot be presumed that the district court rendered the judgment in the exercise of its exclusive original jurisdiction. If this court has power to grant the relief asked, it is under its appellate jurisdiction.

Plaintiffs base their right on the statute which provides that, "when any one of said civil courts of appeals shall in any cause or proceeding render a decision in which any one of the judges therein sitting shall dissent as to any conclusions of law material to the decision of the case, said judges shall enter the grounds of his dissent of record, and the said court of civil appeals shall, upon motion of party to the cause, or on its own motion, certify the point or points of dissent to the supreme court." Act April 13, 1892, § 32. Section 34 of the act declares that, "after the question is decided, the supreme court shall immediately notify the court of civil appeals of their decision, and the same shall be entered as the judgment of said court of civil appeals." This is one of the modes through which the supreme court is permitted to exercise its appellate jurisdiction over judgments of courts of civil appeals, and in such cases its judgments are as final and conclusive as though rendered on writ of error. If this statute is to be construed and applied literally, there is no class of cases in which the jurisdiction of courts of civil appeals is final and conclusive on law and fact, for there is no class of cases in which dissent may not occur. That it was not intended that some classes of cases should be decided by the supreme court, and that as to them the...