35 S.W. 1041 | Tex. | 1896
H.V. Schintz, the plaintiff in the present proceeding, brought a suit in the District Court of the 53d judicial district, of which court the respondent F.G. Morris is judge, against one W.H. Tobin and one J.L. Hume to recover damages for false imprisonment and malicious prosecution. The case was tried and a verdict was returned in favor of the plaintiff on his cause of action for false imprisonment, but in favor of the defendants therein for the malicious prosecution. Thereupon a judgment was rendered for the plaintiff for the amount awarded him by the verdict, but nothing was said as to so much of the verdict, as was in favor of the defendants. On motion of the defendants a new trial was granted as to the issue of false imprisonment, but not as to the other issue in the case, the court ordering that the verdict as to that should stand until a new verdict should be returned upon the cause of action upon which the new trial had been granted. Thereupon the plaintiff moved the court to set aside so much of his judgment granting a new trial as refused a new trial upon the issue found in favor of defendants and to permit him to proceed to trial anew at the then term, upon the whole case as made by the petition. This motion having been overruled, the plaintiff instituted this proceeding in the Court of Civil Appeals against the judge of the trial court to compel him to proceed to trial upon the whole case. The Court of Civil Appeals awarded the writ of mandamus, one of the judges dissenting. The points of dissent have under the statute been certified to this court for determination.
Has this court jurisdiction to hear and determine the questions presented? We are of the opinion that we are without jurisdiction over the questions, and that the certificate of dissent should be dismissed. The limits of the jurisdiction of the Supreme Court are defined in section 3 of article 5 of the Constitution. So much of that section as is necessary for the purposes of this opinion reads as follows:
"The Supreme Court shall have appellate jurisdiction only, except as herein specified, which shall be co-extensive with the limits of file State. *650 Its appellate jurisdiction shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction, under such restrictions and regulations as the Legislature may prescribe. Until otherwise provided by law, the appellate jurisdiction of the Supreme Court shall extend to questions of law arising in the cases in the Courts of Civil Appeals in which the judges of any Court of Civil Appeals may disagree, or where the several Courts of Civil Appeals may hold differently on the same question of law, or where a statute of the State is held void."
The first limitation is contained in the first sentence of the section, and it is that the jurisdiction shall be appellate only, except in certain specified cases. The excepted cases of original jurisdiction do not concern us here. The second sentence still further limits the jurisdiction of the court to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction. This provision of the Constitution came under consideration when this court was called upon to pass upon the question, whether or not the Legislature had the power to confer jurisdiction upon the court to decide a question certified for our determination by the Court of Civil Appeals, before any decision by that court. Darnell v. Lyon,
It is to be noted that the recent constitutional amendments which provide for the creation of the Courts of Civil Appeals do not authorize those courts to compel a district judge by the writ of mandamus to proceed to the trial of a case; but section 6 of article 5, after prescribing the appellate jurisdiction of such courts, provides that, "Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law." In pursuance of that authority, when the Legislature came to provide for the organization of those courts and to fix their jurisdiction, they incorporated in the act the provision which now stands as article 1000 of the Revised Statutes of 1895, and which reads as follows: "The said courts, or any judge thereof, in vacation, may issue the writ of mandamus to compel a judge of the District Courf to proceed to *652 trial and judgment in a cause, agreeably to the principles and usages of' law, returnable on or before the first day of the next term or during the session of the same, or before any judge of the said court, as the nature of the case may require."
We here take occasion to call attention to the fact that in the reprint of the Constitution prefixed to the present revised statutes, the provision which authorizes the Legislature to add to the jurisdiction of the Courts of Civil Appeals and which is referred to above is inadvertently omitted.
For the reasons given, the certificate of dissent is dismissed for want of jurisdiction.
Certificate of dissent dismissed.
Delivered June 4, 1896.