94 S.W.2d 410 | Tex. | 1936
This is an original application filed in the Supreme Court by Aetna Life Insurance Company, relator, against the Honorable Court of Civil Appeals for the 10th Supreme Judicial District of Texas, at Waco, composed of Honorable J. N. Gallagher, Chief Justice, Honorable James P. Alexander and Honorable J. A. Stanford, Associate Justices, and J. M. McIver, the adverse party in the litigation, to compel the Court of Civil Appeals to certify to the Supreme Court the following question:
"Since appellee did not offer sufficient evidence upon the hearing of appellant's plea of privilege to overcome the prima facie case made by the filing of said plea, was the appellant, Aetna Life Insurance Company, entitled to have judgment rendered in its favor by the Court of Civil Appeals ordering said cause to be transferred to the county of appellant's residence?"
The opinion of the Court of Civil Appeals is reported in
The motion for rehearing and, in the alternative, to certify having been overruled, relator filed in this Court its motion for leave to file a petition for mandamus. That motion was granted on account of the conflicts alleged, and the application is now before us for decision on its merits.
1 It appears probable that the conflict necessary to give jurisdiction to this Court exists between the decision of the Honorable Court of Civil Appeals in this case and the decisions in the other cases above cited. But, since the petition for mandamus was filed, this Court has, in principle, settled the question involved in the conflict. In the case of Compton v. Elliott,
Article 1856 of the Revised Statutes provides that, when the judgment of the trial court shall be reversed, the cause shall be remanded for a new trial, if it is necessary that some matter of fact be ascertained. In the instant case the Court of Civil Appeals must have concluded that it was necessary that some matter of fact be ascertained and remanded the cause for that purpose. In an ordinary case, wherein a final judgment had been rendered in the trial court, it would not be questioned that the Court of Civil Appeals had the right to remand the cause rather than render judgment under these circumstances, and we held, in principle at least, in Compton v. Elliott, supra, that it has the same right when the appeal *556 is from an interlocutory order sustaining or overruling a plea of privilege.
2 The question, thus narrowed down, is whether this Court should issue a writ of mandamus to compel certification of a question which has heretofore been decided by it when the decision of the Court of Civil Appeals is in harmony with this Court's prior decision. Many cases hold that the Court of Civil Appeals is not required to certify to the Supreme Court a question when its decision follows that of the Supreme Court, even thought a conflict exists between its decision and those of other courts of civil appeals. The most recent decision of that question which we have discovered is by the Eastland Court in City of Corpus Christi v. McMurray,
The application for mandamus will be denied.
Opinion adopted by the Supreme Court May 27, 1936.
Rehearing overruled June 24, 1936.