Hursey v. Bond, 8097.
| Decision Date | 09 June 1943 |
| Docket Number | No. 8097.,8097. |
| Citation | 172 S.W.2d 305 |
| Parties | HURSEY v. BOND, Chief Justice, et al. |
| Court | Texas Supreme Court |
The relator, Eugene S. Hursey, filed in this court (March 30, 1943) a motion asking leave to file a petition for mandamus directing the Chief Justice and Associate Justices of the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas at Dallas to certify certain questions of law for the determination of the Supreme Court. The motion asking leave to file was granted. Rule 474, Texas Rules of Civil Procedure. The petition for mandamus was set down for hearing both on the question of conflict and on the merits involved in the conflict. Rule 475, Texas Rules of Civil Procedure.
The cause in which the questions of law sought to be certified arose was decided by the Honorable Court of Civil Appeals at Dallas on the 18th day of September, 1942. The relator filed a motion for a rehearing in that court on October 2, 1942. The motion for rehearing was overruled on October 23, 1942. Hursey v. Hursey, Tex.Civ. App., 165 S.W.2d 761. The relator prosecuted a writ of error in the cause to this court. The application for the writ of error was filed in the Court of Civil Appeals at Dallas on November 20, 1942, and in the Supreme Court on November 27, 1942. This court dismissed the application for writ of error for want of jurisdiction on December 16, 1942.
In his petition for mandamus the relator Hursey avers: "This petitioner, after motion for rehearing in the Court of Civil Appeals was overruled by a majority court, Chief Justice Bond dissenting, and after the Supreme Court dismissed petitioner's petition for writ of error, filed a motion in the Court of Civil Appeals at Dallas to have said court certify these same questions of law mentioned in this petition and which were raised by motion for rehearing and in the petition for writ of error, and the Court of Civil Appeals in the majority order refused and overruled petitioner's motion to certify, Chief Justice Bond dissenting."
Mandamus will not lie to compel a court to perform an act required by statute in the absence of a request for such performance by the party at interest and a...
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