No. 49. | Tex. | Apr 6, 1893
Applicant seeks a writ of error from a judgment of a Court of Civil Appeals, reversing a judgment of the District Court, and remanding the cause for trial upon its merits.
The application shows that the rights of the parties depend on the true construction of an instrument in writing, and that this was so presented by the pleadings in the District Court that the question of construction could, in the opinion of the court, be passed upon on demurrer.
This was done, the District Court holding that the plaintiffs showed no right; and there being no offer on their part to amend, judgment was entered for the defendant, who now makes this application for writ of error.
The Court of Civil Appeals held, that the demurrer should not have been sustained, and that parol evidence was necessary to enable the court to construe the instrument.
Under this state of facts, it is as unnecessary as it would be improper for this court to express any opinion as to the correctness of this ruling; for it is evident that it can not necessarily have any effect on the ultimate disposition of the case.
There is no question involved in the case, nor party to it, which, under the law, would authorize this court to grant a writ of error on a judgment reversing and remanding a cause; nor is there any other ground on which the writ might be granted.
The statute provides, that this court may issue writs of error "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."
By the words "settles the case" we understand to be meant, fixes the rights of the parties, and it is certainly true that the decision of the Court of Civil Appeals does not do this. It simply reverses the judgment and remands the cause to enable the parties to introduce any evidence they may be able to procure throwing light upon the transaction, such as may enable the court better to arrive at the intention of the parties than it was thought could be, from the instrument alone.
Such a decision settles no case, and settles no ultimate right; and having no power to grant the writ on the application, it will be dismissed.
Application dismissed.
Delivered April 6, 1893. *448