58 Tex. 562 | Tex. | 1883
This case was before the court for determination at a previous term. It will be found fully reported in 56 Tex., 574. The facts to be considered in deciding the present appeal are as follows:
On the 16th of August, 1880, the appellant Carrie Lowell, as the widow of H. Lowell, for herself and her minor children, filed her application in the county court of Galveston county for an allowance in lieu of homestead and other exempted articles, alleging that
The assignments of error are evidently intended to bring in review the correctness of the judgment of this court rendered at a former term in this case. We are not aware of any precedent that would authorize such action on our part.
No case has been cited in which such a course has been pursued, and we know of none. The cases of Layton v. Hall, 25 Tex., 202; 10 Tex., 55, and 16 Tex., 262; White v. Downs, 40 Tex., 227; Ragland v. Rogers, 42 Tex., 422; Reeves v. Petty, 44 Tex., 149, which are sought to be used as authority, were all cases where the judgment of the district court had been simply reversed and the cause remanded for a new trial on its merits, and after such trial was had, the judgment, not of this court but of the district court, has been brought here for review; nor do we regard the two cases of Burns v. Ledbetter as laying down a different rule (54 Tex., 374, and 56 Tex., 282). Wells on Res Adjudicata, ch. 44; Kendall v. Mather, 48 Tex., 596; Willis v. Owen, 43 Tex., 48.
Under such circumstances, this court has on rare occasions, proceeding in each instance with great caution, and not always with entire unanimity, declined to follow in every respect its previous ruling, as will be seen from an examination of the cases above and below cited. See also, in this connection, Bogers v. Bradford, 56 Tex., 633, and Holmes v. Coryell, Galveston term, January, 1883.
But where, as in this case, the judgment of the district court was thoroughly considered, and the court, refusing to reverse the judgment below and grant a new trial on the merits, proceeded to de
Ho portion of this record is now properly before us for review on this appeal, except the action of the district court had since the mandate of this court was there filed. That action was in strict compliance with the directions of the mandate, and the judgment of the district court, in effect refusing to disregard the directions of this court, is affirmed.
Afxibmed.