Smith v. Conner

• Decision Date: 06 February 1905
• Parties: SMITH et al. v. CONNER, Chief Justice, et al.
• Court: Texas Supreme Court

84 S.W. 815

SMITH et al. v. CONNER, Chief Justice, et al.

Supreme Court of Texas.

February 6, 1905.

Petition by T. Smith and others for mandamus to J. H. Conner, Chief Justice, and others. Refused.

Hunter & Flood and Kinder & Dalton, for relators. Matlock, Miller & Dycus, for respondents.

WILLIAMS, J.

This is an application for a writ of mandamus to require the Justices of the Court of Civil Appeals of the Second District to certify to this court for decision a question decided by that court in the case of J. T. Smithers, Plaintiff in Error, v. T. Smith and S. A. Greer, Defendants in Error, 80 S. W. 646; the application being founded upon an alleged conflict between such decision and certain decisions (named in the petition) of this court and of other Courts of Civil Appeals. The case of Smithers v. Smith and Greer, in which the decision was made, has been held by this court to be one of boundary, in which the decision of the Court of Civil Appeals is final. Smithers v. Smith (Tex. Sup.) 81 S. W. 283. Its history is briefly given in the report cited. The decision of the Court of Civil Appeals reversing the judgment of the district court, and rendering a judgment containing only the description of the land as given in the pleas in reconvention of the defendants, Smith and Greer, is alleged in the application for mandamus to be in conflict with the decisions of this court in the following cases: Etter v. Dignowitty, 77 Tex. 212, 13 S. W. 973; Goss v. Pilgrim, 28 Tex. 266; Morris v. State, 47 Tex. 594; Gaines v. Bank, 64 Tex. 21, 22; Collins v. Bank, 75 Tex. 255, 11 S. W. 1053; Clark v. Pearce, 80 Tex. 151, 15 S. W. 787; Hance v. Burke, 73 Tex. 66, 11 S. W. 135; Railway Co. v. Casey, 52 Tex. 124; Ann Berta Lodge v. Leverton, 42 Tex. 22.

If such a conflict were found to exist, it would of itself give no jurisdiction to this court to require the certification of the question upon which the conflict exists. The only statute, except that regulating certificates of dissent, which makes it the duty of the Court of Civil Appeals to certify a question to this court, is the act of 1899 (Acts 26th Leg. p. 170, c. 98), which provides that when "any one of said courts may arrive at an opinion in the decision of any of said causes that may be in conflict with the opinion" rendered by another Court of Civil Appeals "on any question of law, and said Court of Civil Appeals refuses to concur with the opinion so rendered by said other Court of Civil Appeals, it shall be the duty of said court failing to concur with the opinion in conflict with the opinion so arrived at by said court" to certify the question in the manner prescribed. This does not make it the duty of the Courts of Civil Appeals to certify to this court any conflicts that may arise between their opinions and those of this court, and hence mandamus will not lie to require them to do so. The propriety of certifying questions, except such as are within this statute, or article 1040, Rev. St., relating to certificates of dissent, is left to the determination of the Courts of Civil Appeals. Rev. St. 1895, arts. 1039-1043.

But the petition for mandamus also claims that the Court of Civil Appeals committed error in correcting the judgment of the district court in the matter stated, because the point was not properly raised in the trial court by motion to correct the judgment or otherwise, and that herein its opinion conflicts with those of the Courts of Civil Appeals in the following cases: Russell v. Nall, 2 Tex. Civ. App. 63, 20 S. W. 1006, 23 S. W. 901; Davis v. Railway Co., 44 S. W. 1016; Bonnell v. Prince (Tex. Civ. App.) 32 S. W. 857. These cases hold that certain objections to the judgments therein in question could not be raised on appeal when they had not been raised in the trial court, but none of them hold that the question which the Court of Civil Appeals considered in this case could not be raised without a motion to correct the error having been made in the lower court. There are some questions to which the rule of practice relied on does not apply, and none of the decisions claimed to be in conflict with the one under consideration apply it to the particular point urged and considered in this case as ground for reversal. Hall v. Jackson, 3 Tex. 305; W. U. Tel. Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; Throckmorton v. Davenport, 55 Tex. 236. Besides, it appears that the party against whom the judgment of the district court was rendered did make a motion to set aside such judgment, in which he asserted that the "judgment is * * * not authorized under the law, or pleadings in the case." That it was not authorized by the pleadings is the point decided by the Court of Civil Appeals. Should it be conceded, as contended by counsel for petitioner, that this motion was not sufficiently specific to properly raise the question, it would not help out the application, because that is not the question determined in any of the cases relied on as conflicting with that attacked.

It is further claimed that it was wrong for the Court of Civil Appeals, in reversing the judgment upon an objection claimed to have been made for the first time in that court, to adjudge the costs against the defendants in error, and this part of its judgment is said to be in conflict with the decisions of other Courts of Civil Appeals in these cases: Storrie v. Cortes, 39 S. W. 607; Tinsley v. Houston, 36 S. W. 816; Moore v....