9 S.W.2d 483 | Tex. App. | 1928
We think the contention that this court is without power to direct the issuance of the *484
writ of mandamus as prayed for should be sustained. By the terms of the statute (articles 1823 and 1824, R.S. 1925) this court has power to issue such a writ only (1) when it is necessary to do so to enforce jurisdiction conferred upon it; and (2) "to compel a judge of the district court to proceed to trial and judgment in a cause." It is not necessary to issue the writ to enforce jurisdiction of this court over the controversy between relator and Pinkham, for this court has no jurisdiction over that controversy. By express terms of the statute (article 3151, R.S. 1925) the decision of that controversy by the district court was final, and therefore not subject to be reviewed by this court. The power conferred to grant such a writ "to compel a district court to proceed to trial and judgment in a cause" cannot be invoked, because it appears the court did that — that he in fact tried the contest and in fact rendered judgment determining it on September 20, 1928. That the trial and judgment were on exceptions to the relator's contesting petition, instead of on evidence heard by the court, we think is of no importance, for the judgment on the exceptions was as final and conclusive as it would have been had it been rendered on the evidence. Carpenter v. Landry,
As supporting his contention that this court has power to issue the writ, relator cites Cleveland v. Ward,
Because, as we see it, this court is without power to issue the writ of mandamus as prayed for, the relator's application is dismissed. *485