No. 44. | Tex. | Apr 10, 1893
Applicant seeks a writ of error to have revised a judgment of affirmance rendered by the Court of Civil Appeals at Galveston, on December 15, 1892. *454
One of the judges of that court having dissented from the opinion of the majority upon one question, on motion of applicant the matter was certified to this court for determination, and on February 27 the judgment of the Court of Civil Appeals was by this court affirmed, and on the 4th of the present month the application now before us was filed.
The applicant now seeks a writ of error for the purpose of having revised a ruling of the Court of Civil Appeals on which all the judges concurred, which, under the ruling heretofore made, could not be revised on the certificate of dissent.
The question arises whether, after having come before this court on certificate of dissent, it would be proper now to grant a writ of error to bring up the entire case.
The law which authorizes the bringing of questions before this court upon certificate of dissent, contemplated that a judgment shall be rendered in the Court of Civil Appeals on the opinion of the majority of the judges, but after this gives to the court the power, on its own motion, or upon motion of a party to the cause, to certify the matter on which the judges have differed for the decision of this court, and upon that being made, the judgment of the Court of Civil Appeals must be made to conform to that decision.
When motion was made by applicant to have question on which there was dissent certified, there was a judgment to sustain an application for writ of error, which would have been granted by this court if, on inspection of application, it was made apparent that error had probably been committed in reference to a material matter, and thus all questions with the decision of which applicant was dissatisfied might have been brought before this court.
The laws which provide for certification of questions on which there may be dissent, furnish simply a means whereby parties may bring questions of law before this court otherwise than by writ of error; but no litigant is compelled thus to bring before this court any question, and a party not only may but ought to refrain from bringing before this court, through this means, one or more questions of law if there be other questions vital to his right which he can not have thus revised.
If a Court of Civil Appeals, on its own motion, should certify a question, it is clear that a litigant should not be thus cut off from right to prosecute a writ of error; for a contrary rule would place it within the power of the court to deprive a litigant of the right conferred on all litigants, under the restrictions imposed by law, to bring before this court for review any question of law decided by or necessary to the decision of a case determined by a Court of Civil Appeals. The law does not contemplate that this court shall hear and determine in piecemeal the many questions of law that may be decided or involved in a cause, and that on some a decision may be made on certificate of dissent, and after this on *455 writ of error all other questions of law may be heard and decided; but it does give to the litigant the right to use either remedy in a cause in which both are applicable, and he must determine for himself whether the question on which there is dissent is the only question vital to his right decided against him; and when he so determines, must be held to his election, and to have waived all questions other than such as he may have revised in the manner selected.
The judgment of the Court of Civil Appeals was final in character; from it a writ of error might be granted on which all questions of law could have been revised; but applicant saw proper to pursue another remedy, more restricted in its operation, and he must be held thereby to have waived all right now to have writ of error, and to have waived all questions that could not be revised under the remedy selected.
The laws look to the speedy termination of litigation, and do not permit delay that would necessarily result if, from a judgment final in character, two or more effective appellate proceedings, the one following the decision invoked in the other, might be used for the purpose of revising errors that could have been reached by a single remedy.
The application for writ of error will be overruled.
Application overruled.
Delivered April 10, 1893.