76 S.W.2d 1043 | Tex. | 1934
This is a certified question from the Honorable Court of Civil Appeals for the Third District, submitting the following questions:
“Is the holding in the tentative draft of opinion hereto annexed, to the effect that the answer of the Supreme Court to the first question certified precludes consideration of the issue above stated under which an affirmance of the judgment of the trial court is now urged, correct?”
In describing the “tentative draft of opinion” the certificate states:
“We have prepared and attach hereto as Exhibit ‘A’ a tentative opinion in the case, drafted upon the hypothesis that the answer of the Supreme Court to the first question certified precludes consideration of the several grounds above enumerated, urged in behalf of those now seeking an affirmance of the trial court’s judgment, and required reversal of the trial court’s judgment. In presenting the question in this form it is not to be understood that the holdings expressed in this tentative opinion represent conclusions which this court has reached. This form was used because it was thought that the question we are now certifying could be more clearly and accurately presented in this manner.”
We have reached the conclusion that this certificate must be dismissed, because:
First. It presents the entire case and comes within “the oft-declared rule against certifying a whole case to the Supreme Court,” and does not comply with Article 1851, R. S., 1925, “requiring the Courts of Civil Appeals to formulate * * * the specific question of law to be determined by the Supreme Court.” Owens v. Tedford, 114 Texas, 390, 269 S. W., 418. See also: Hedrick v. Ratcliff, 122 Texas, 313, 58 S. W. (2d) 41; Hollis v. Parkland Corporation (Comm. of App.), 29 S. W. (2d) 309; First National Bank of Port Arthur v. Zorn, 117 Texas, 180, 299 S. W., 847; Taylor v. Higgins Oil & Fuel Co., 117 Texas, 149, 298 S. W., 891; Falfurrias Immigration Company v. Spielhagen, 103 Texas, 144, 124 S. W., 616; Poole v. Burnet County, 97 Texas, 77, 76 S. W., 425.
Second. The certificate calls upon the Supreme Court to give an advisory opinion; which is not permitted. Morrow v. Corbin, 122 Texas, 553, 62 S. W. (2d) 641.
