29 S.W. 234 | Tex. | 1895
The Merchants National Bank of Fort Worth brought this suit against W.N. Barker and others, applicants for the writ of error. On the 7th day of April, 1891, the suit was dismissed for want of prosecution, but at the same time was reinstated on motion of the plaintiff below, the defendant in this application. At the next term of the court the defendants moved to strike the case from the docket, on the ground that the order reinstating the case was conditional. The motion was overruled and the case went to trial, and resulted in a judgment for defendants.
The plaintiff sued out a writ of error to the Court of Civil Appeals, and the defendants by a cross-assignment complained of the ruling of the court in refusing to grant the motion to strike the case from the docket. The Court of Civil Appeals found error prejudicial to the plaintiff in the rulings of the court upon the trial of the cause, and held the motion to strike the cause from the docket was properly overruled. The judgment was accordingly reversed and the cause remanded.
In order to show jurisdiction in this court, the applicants claim in their petition that the ruling of the Court of Civil Appeals upon the motion to reinstate is in conflict with the decision of the Court of Civil Appeals for the Fourth Supreme Judicial District in the case of Hargrove v. Boero, reported in 23 Southwestern Reporter, 403. We think the conflict is apparent, and not real. In deciding the question in the present case, the Court of Civil Appeals recognized the rule first laid down in Secrest v. Best,
The question before us is not whether the Court of Civil Appeals properly construed the order under consideration or not, but whether they ruled differently from this court or another Court of Civil Appeals upon the same point. We think they did not, and that therefore we have no jurisdiction over the case.
The application for a writ of error is accordingly dismissed.
Application refused.
Delivered January 21, 1895.