*1 [February, H. Schleicher G. Runge v. Julia et al. February 25,
Decided Writ of Error—Petition Filed Too Late—Waiver. filing thirty therefor days within from the time of rehearing the motion for is essential to the grant a writ of therewith cannot be waived counsel for the opposite party. for error to District, Court Civil First from De Witt County. an appeal Pleasants, B. A. Proctors petitioner. Garsner, P. for defendant in error. The motionfor a of this case GAINES, rehearing Chief Justice. 3, on December overruled the Court 1896¿ to the clerk of the of error was not presented for the writ application 31st after motion for 3, day 1897. This was the until January
court one too late. overruled, day and was Stats. (Rev. to file it. reason, clerk declined Thereupon art. For that delay conceding in the application, counsel for the defendant the de- signed stipulation waiving not the fault of the applicant, be considered as if filed on might that the application fault and agreeing as to the of our difficulty removes all 2, 1897. This January be removed difficulty as such ease, may in so far over however, Is arises: not filing The question, of parties. the consent the statute necessary the time prescribed of the application deter- court to entertain it upon to confer order words, the time be waived consent of can In other the case? mine and will sus- upon point, invite argument desire parties? fifteen not period exceeding question, consideration pend and the defendant for the of counsel applicant views end that to the days, in writing. them, be presented if desired may, to be furnished with a copy cause counsel will court clerk of this these remarks. 21, 1897. January Delivered of error in The application GAINES, Chief Justice. of the Court of Civil Ap- of the clerk office
this case counsel for the defendants and, late; too day one peals delay, to waive we had doubts writing agreed had day argument former requested upon jurisdiction, for the purpose having elapsed, time allowed question. determination, though counsel the defendant has ready of the privilege filing argument upon availed himself alone point. Rümgb bt al. et al. v. Schleicher
1897. J
be conferred
The extent
*2
amended
5
Constitution
3 of
of the
as
is
in section
article
defined
that,
to
section
relates
the
in
So much of
as
appel-
shall have
court,
of
“The
Court
Supreme
the
reads
follows:
be
shall
coex-
as herein
which
jurisdiction only,
specified,
late
except
shall
jurisdiction
of
appellate
tensive
the limits
the State.
Its
of
of which the Courts
Civil
to
of
in
extend
law
cases
questions
arising
and regula-
under
restrictions
have
such
Appeals
appellate jurisdiction,
law,
by
tions as
Until otherwise
Legislature
provided
the
may prescribe.
to ques-
of
Court shall extend
appellate
the
the
in
of
Courts of
law
in the cases in the
Civil
tions
arising
of
or
the
may disagree,
Court
Civil
where
judges
any
Appeals
the
of
of
on
several Courts
Civil
same
Appeals
hold
the
differently
¡of
or
a statute of the State
the
law,
tion
where
is held void.” With
ex-
of
cases mentioned in the
no
sentence,
juris-
the
last
ception
appellate
to
directly
is
and even
given
court,
diction whatever
this
the jurisdic-
subject
by
taken away
conferred was made
to be
the Legis-
there
acted,
has
Legislature
from the statutes
lature.
passed
of
conferred
section
by
consideration,
exercise
the
under
authority
hear
determine cases upon
we derive our
Arti-
powers
appeal.
940
941
Statutes
of
Revised
define our
cles
appellate jurisdic-
it
be
that
shall
tion,
brought
into exercise
prescribe
over certain
mentioned,
of
therein
error,
cases
a
of
classes
writ
to be
granted
942 also
court. Article
provides, among
other
things,
substance,
to'
a
that, in order
obtain writ of
a party aggrieved
judg-
of
Court of Civil
shall
present
to this
petition
court,
that this
shall be filed
with the clerk of the
of
within thirty days from the
of the
motion for a
in that court.
that,
rule
be
general
unless
taken or
appeal
of
error
law,
out within
limited by
be sued
the time
the court is without juris-
in Edmonson
Discussing
diction.
v.
7
Bloomshire, Wall.,
Hr.
says:
Justice Miller
S.,
v. U.
458 [March? * * * action, These- of the inferior court. no revise the right have and have- unanimous approval have received the principles besides sev- not reported, number cases large been acted upon hesi- has never the court not here mentioned. And eral cases reported record it has appeared tated to act on this rule whenever dismiss made no motion to came within the case matter fact, involving In it as a treating party. either do otherwise.” we cannot V. this court. (Livingston acted upon The same doctrine has been in neither Texas, But State, 393; State, 70 v. 75 Texas, a waiver of the time on of the part appellee- of the oases cited was there or the defendant in error. Constitution, of article as we have-
Under amended section *3 under such re- court is to exercise its seen, When, the Legislature may prescribe. strictions regulations therefore, Legislature prescribed be filed with the clerk of the Court of should Civil Appeals motion from the in that'
thirty days that it that a think intended require- we be as a precedent should condition exercise of the jurisdiction. conclude that the this case should be dis- therefore ordered. missed, and it is so error dismissed.
MARCH, Staggs v. Mrs. C. A. Company & Pacific Decided March Contributory Negligence—Discovered Peril. guilty railway of contribu- run and killed train person Where discovering avoiding negligence recovery there can be no in not tory failing negligence employes to discover account of defendant’s death his striking to avoid him. in time peril his Dis- from Court of Civil Second Certificate Dissent, Tarrant County. trict, from the railway damages- to recover company suit was in the of M. -had Staggs. death J. Plaintiffs judgment causing Associ- reversed, Hunter, which, on defendant’s trial A former certificate S. W. (37 Rep., Justice, dissenting. ate Ante, 254. dismissed. dissent