Simpson v. McDonald

Decision Date22 March 1944
Docket NumberNo. A-47.,A-47.
Citation179 S.W.2d 239
PartiesSIMPSON et ux. v. McDONALD, Chief Justice, et al.
CourtTexas Supreme Court

Original proceeding on petition of Will Simpson and wife against Honorable Atwood McDonald, Chief Justice, and others, for a writ of mandamus to require the Fort Worth Court of Civil Appeals to certify to Supreme Court for its decision certain questions as law involved in a case decided by such Court of Civil Appeals, 175 S.W. 2d 630.

Petition granted.

See, also, 176 S.W.2d 761.

Israel Smith, of Tyler, for petitioners.

White & Yarborough, of Dallas, for respondent C. R. Yarborough.

ALEXANDER, Chief Justice.

This is an original mandamus proceeding brought in this court by Will Simpson and wife, Roberta Simpson, to require the Fort Worth Court of Civil Appeals to certify to this court for its decision certain questions of law involved by the case of Simpson v. Yarborough recently decided in that court. See 175 S.W.2d 630.

This suit involved less than $1,000.00, and the alleged basis for our jurisdiction to grant the writ of mandamus is that there was a dissenting opinion by one of the Justices of the Court of Civil Appeals. This brings us to a decision of the question whether this court has jurisdiction to require the Court of Civil Appeals to certify questions of law involved in a case that could have been brought in a county court merely on the ground that there was a dissenting opinion.

Our Constitution provides: "The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State." Article V, Section 3, Vernon's Ann.St. Pursuant to the above provision, the Legislature enacted Article 1733, which reads:

"The Supreme Court or any Justice thereof, shall have power to issue writs of procedendo, certiorari and all writs of quo warranto or mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Civil Appeals or judges thereof, or any officer of the State Government, except the Governor." Acts 1913, p. 107; Acts 1917, p. 140.

Under the above article this court has jurisdiction to issue a writ of mandamus to compel a Court of Civil Appeals to perform its clear statutory duty.

Article 1852, Revised Statutes of 1925, provided as follows:

"When a dissenting opinion is rendered by one judge as to a conclusion of law material to a decision of the case, the grounds of his dissent shall be entered of record by the dissenting member. Upon motion of a party or upon its own motion the court shall certify the point or points of dissent to the Supreme Court. The provisions hereof shall apply to cases appealed from the county court as well as from the district court." (Acts 1893, p. 89; G.L. vol. 10, p. 519; Acts 1923, p. 72.)

The above article has been embodied in and is now Rule 463 of the Texas Rules of Civil Procedure.

In the case of Herf v. James, 86 Tex. 230, 24 S.W. 396, this court held that it did not have jurisdiction to issue mandamus to require the Court of Civil Appeals to certify a question to this court in a case in which under the Constitution the county court would have had original jurisdiction, and therefore a case in which the jurisdiction of the Court of Civil Appeals was final under the provisions of Revised Statutes Article 1821. That holding was based on the proposition that the jurisdiction of the Supreme Court was appellate only, and since it did not have jurisdiction over the main case it would not have jurisdiction to enter a judgment in the event the question should be certified. But in the case of Wallis, Landes & Co. v. Stuart, 92 Tex. 568, 50 S.W. 567, 569, the court re-examined the matter, and after calling attention to the provisions of Article 1851 which authorize the Court of Civil Appeals to certify a question when "there should arise an issue of law which said court should deem it advisable to present to the supreme court for adjudication," held that the Supreme Court would have jurisdiction to entertain a certified question from the Court of Civil Appeals, even though the case be one over which the judgment of the Court of Civil Appeals was final. The Court there said:

"This provision [now Art. 1851] not only authorized certified questions in cases over which the court of civil appeals was final, but confined the power to that class of cases. The section was amended by the act of May 2, 1892, and as so amended is now article 1043 of the Revised Statutes [Art. 1851, R.C.S. 1925], which is quoted above. The purpose of the amendment was not in any manner to restrict the power previously conferred, but to extend it to every case in the court of civil appeals, without any distinction whatever. The motion to dismiss is overruled, and we proceed to answer the questions."

After the rendition of the above decisions this court held in a number of cases that where the case was one over which the jurisdiction of the Court of Civil Appeals was final under the provisions of Article 1821, if the case was certified under the provisions of Article 1851, that is, because it involved an issue of law which the Court of Civil Appeals deemed it proper to certify to the Supreme Court, or if the case was certified under the provisions of Article 1855, that is, because of a conflict with some other decision, the Supreme Court would have jurisdiction to answer the question certified. McCurdy & Daniels v. Conner, 95 Tex. 246, 66 S.W. 664; Wilson v. Giraud, 113 Tex. 3, 195 S.W. 848; Missouri, K. & T. R. Co. v. Lovell, 110 Tex. 546, 221 S.W. 929. However, it was also held that if a question was certified under provisions of Article 1851, that is, because there was a dissent by one of the Justices of the Court of Civil Appeals, the Supreme Court would not have jurisdiction to answer the question so certified. Wilson v. Giraud, supra; Missouri, K. & T. R. Co. v. Lovell, supra; Perry v. Greer, 110 Tex. 549, 221 S.W. 931; American Nat. Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397. See also Kidd v. Rainey, 95 Tex. 556, 68 S.W. 507. The reason for this distinction is not clear. However, it becomes immaterial at this time.

In 1923, after the rendition of the above decisions, Article 1852, now Rule 463, was amended by adding thereto the last sentence, which reads as follows: "The provisions hereof shall apply to cases appealed from the county court as well as from the district court." The provisions of this amendment are plain and unambiguous. They make it clear that it was the intention of the Legislature that the provisions of Article 1852 which require the Court of Civil Appeals to certify the points of dissent to the Supreme Court apply also to cases arising in the county court and over which the jurisdiction of the Court of Civil Appeals would be final. Certainly the Legislature did not intend to require the Court of Civil Appeals to certify such cases to the Supreme Court unless it also intended that the Supreme Court should have jurisdiction to consider such certificates when so presented by the Court of Civil Appeals. Since the adoption of the above amendment this court has exercised jurisdiction in answering questions certified to it by the Court of Civil Appeals by reason of dissent in cases appealed to the Court of Civil Appeals, and in which the jurisdiction of that court was final. Rhodes v. McDonald, Chief Justice, Tex.Sup., 172 S.W.2d 972; Akers v. Epperson, Tex.Sup., 171 S.W. 2d 483. See also Akers v. Epperson, Tex. Civ.App., 172 S.W.2d 512, 517, par. 10. The general jurisdiction of this court to answer questions certified by the Court of Civil Appeals in cases in which the Court of Civil Appeals has appellate jurisdiction appears to be now well settled. Darnall v. Lyon, 85 Tex. 455, 22 S.W. 304; Id., 85 Tex. 455, 22 S.W. 960; Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, par. 22. We therefore hold that we have jurisdiction to answer certified questions from the Court of Civil Appeals which are certified merely because of a dissent in cases over which the jurisdiction of the Court of Civil Appeals is final. See in this connection Akers v. Epperson, Tex.Civ. App., 172 S.W.2d 512, 517.

Since we have jurisdiction to answer the certified questions in such a case, and the statute makes it the duty of the Court of Civil Appeals to certify the questions in case of dissent, we will, in a proper case, issue the writ of mandamus to compel compliance with this clear, statutory duty.

In this respect, however, it should be noted that under the present practice ordinarily this court will not permit the Court of Civil Appeals to certify questions of law to this court in a case where it clearly appears that the case may properly and timely reach this court by writ of error. Rule 461, T.R.C.P.; Duval v. Clark, 138 Tex. 186, 157 S.W.2d 626. Nor will writ of mandamus issue to compel certification in such a case. State v. Fisher, 94 Tex. 491, 62 S.W. 540.

There appears to be some conflict between the provisions of Article 1728, which fix jurisdiction of the Supreme Court to grant writs of error, and Article 1821, which make the jurisdiction of the Court of Civil Appeals final in certain cases, but this conflict has been recognized and resolved in favor of the provisions of Article 1821, and as a consequence it is held that the Supreme Court does not have jurisdiction to grant a writ of error in a case over which the...

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