Layton v. Hightower
| Decision Date | 02 January 1929 |
| Docket Number | (No. 1172-5156.) |
| Citation | 12 S.W.2d 110 |
| Parties | LAYTON et al. v. HIGHTOWER, Chief Justice, et al. |
| Court | Texas Supreme Court |
Adams & McAlister, of Nacogdoches, and Fairchild & Redditt, of Lufkin, for respondents.
This is a proceeding for the writ of mandamus to compel the Court of Civil Appeals for the Ninth Supreme Judicial District to certify for decision by the Supreme Court a question of law alleged to have been decided by the first-mentioned court in the case of Perry Bros. Variety Stores v. Layton et al., which is reported in 7 S.W.(2d) 190, and in which case the judgment of the trial court was reversed and judgment rendered for the appellant. That case is one of slander, brought by the appellees therein, and no appeal lies to the Supreme Court. The decision of said Court of Civil Appeals on said question of law is alleged to be in conflict with the decision of the Court of Civil Appeals for the First Supreme Judicial District on the same question in the case of Koehler v. Sircovich, 269 S. W. 812. The question of law upon which the conflict is alleged to exist will be disclosed in the course of this opinion.
A conflict of decision which is required by article 1855 of the Statutes (Rev. St. 1925) to be certified to the Supreme Court is thus defined by the statute:
"Where a decision of a Court of Civil Appeals is in conflict with an opinion" of the "Supreme Court of Texas or by some other Court of Civil Appeals in this state on any question of law. * * *"
The conflict between the two decisions must be upon a question of law that is involved and determined in both cases (Garitty v. Rainey, 112 Tex. 369, 247 S. W. 825); and the question of law must be such that a decision thereof by the Supreme Court will necessarily control the disposition of the case in which the certification is sought (Benson v. Jones [Tex. Com. App.] 296 S. W. 865). If facts in issue, which are involved in a particular ruling in each of the two cases, are materially the same in both cases, and the decision of the court in one case, as to the legal effect of...
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