56 S.W. 324 | Tex. | 1900
This is an application for a writ of error to the Court of Civil Appeals to revise a judgment of that court which reversed the judgment of the trial court and remanded the cause. The first question which presents itself is, have we jurisdiction of the case?
The following is a brief statement of the facts and of the history of the suit. One Fortescue sold to Isaac N. Watson a tract of land, taking for the purchase money thereof three promissory notes executed by Watson, two for $881 each, due respectively one and two years after date, and one or $452, due three years after date. Fortescue transferred the note last described and it became the property of the Reliance Lumber Company. Suit was brought upon it by that company against the maker, and judgment was obtained against him with a decree foreclosing the lien on the land. The land was sold by virtue of an order of sale issued upon such decree, and the applicant, Douglass, became the purchaser. Fortescue subsequently brought suit against Watson in the State of Nebraska upon the two notes retained by him, but Watson set up in defense that he executed the notes as agent of one Cook and took the conveyance of the land in trust for Cook and defeated the suit. Fortescue then transferred the two notes to E.A. Blount, together with all his right, title, and interest in the land for which they were given. Blount then brought suit for a recovery of the land against Watson, Douglass, and others, who, he alleged, were claiming some interest in it; and praying in the alternative for a recovery upon the notes and a foreclosure of the lien. The suit resulted in a judgment in favor of Blount for an undivided interest of 1762 acres of the land, and for Douglass for an undivided interest of 452 acres; but providing that in case Douglass should within twenty days pay Blount the amount of the two notes held by him, the former should have title to the whole land. Douglass appealed and the judgment was reversed, the court ruling that Blount was entitled to pay off the amount paid by Douglass at the sheriff's sale and the balance of the judgment and to hold the land. The cause was accordingly remanded so as to enable him to amend his pleadings and to avail himself of that relief.
To show jurisdiction in this court, the applicant relies upon two *501 grounds. He avers, first, that the decision of the Court of Civil Appeals practically settles the case; and, secondly, that the opinion of that court overrules two decisions of this court.
As a general rule, we are without power to grant a writ of error in a reversed and remanded case (Revised Statutes, article 941); and the first question is, does the case come within the eighth exception of the article cited? That exception is as follows: "When the judgment of the Court of Civil Appeals, reversing a judgment, practically settles the case, and this fact is shown in the petition for writ of error, and the attorneys for petitioners shall state that the decision of the Court of Civil Appeals practically settles the case, in which case, if the Supreme Court affirms the decision of the Court of Civil Appeals, it shall also render final judgment accordingly." Under this exception, it is not sufficient that the applicant alleges that it practically settles the case, but it must appear from the record and the opinion that such is the fact. Under the decision, the appellee in the Court of Civil Appeals can recover the land upon a new trial by amending his pleadings and offering to pay the appellant the amount paid by him at the sheriff's sale, and to the holder of the judgment recovered by the Reliance Lumber Company, the balance due thereon. Do we know that he will do this? If not, how can we say that the case is practically settled? But again, the appellant has averred that the decision practically settles the case and this is tantamount to an averment that he can adduce no additional testimony to change the result of the suit; but the appellee, whose judgment has been reversed, has not applied for a writ of error and hence has made no such averment. Can we say that he may not adduce further evidence in support of his demand? And, again, the statute requires that in case we grant the writ and affirm the decision of the Court of Civil Appeals, we shall render final judgment in accordance with their opinion. This can not be done in this case for the reason that, according to their opinion, there are no pleadings upon which the proper judgment may be rendered. We conclude that the first ground relied on to give jurisdiction to this court is untenable.
In order to show jurisdiction over a remanded case on the ground of conflict of decision, the rule is that the applicant must point out the decision which he claims to have been overruled. The cases relied upon by applicant to show the conflict are Salmon v. Downs,
We are of the opinion that we are without jurisdiction, and therefore the writ of error is dismissed.
Dismissed. *503