106 S.W. 325 | Tex. | 1908
This is a motion to file a petition for the writ of mandamus to compel the judges of the Court of Civil Appeals for the Sixth Supreme Judicial District to certify to this court a question arising in the case of the Texas Pacific Railway Co. v. Sproles, recently decided in that court, upon the ground that there is a conflict in the decision of the court in that case with decisions of other Courts of Civil Appeals in cases cited.
By an act of the Legislature, approved May 9, 1899, it is provided that "in any cause that is now pending or may hereafter be pending in any of the Courts of Civil Appeals of the several supreme judicial districts of the State of Texas, any one of said courts may arrive at an opinion in the decision of any of said causes that may be in conflict with the opinion heretofore rendered, or hereafter rendered, by some other Court of Civil Appeals in this State on any question of law, and said Court of Civil Appeals refuses to concur with the opinion so rendered by the said other Court of Civil Appeals, it shall be the duty of said court failing to concur with the opinion in conflict with the opinion so arrived at by said court, through its clerk, to transmit the question of law, duly certified to, involved in the cause wherein said conflict of opinion has arisen, together with the record or transcript in said cause to the Supreme Court of the State of Texas for adjudication by said Supreme Court." (Laws, 1899, p. 170.) The conflict which makes it the duty of a Court of Civil Appeals to certify a question is with the decision of some other Court of Civil Appeals and not with the decision of the Supreme Court. The case principally relied upon to show a conflict is that of the Missouri, Kansas Texas Ry. Co. v. Hanacek, 23 Texas Civ. App. 394[
The other two cases relied upon as showing a conflict are the case of Houston Texas Central Ry. Co. v. Hollingsworth (29 Texas Civ. App. 306[
So in the Hollingsworth case (29 Texas Civ. App. 306[
Since the petition in our opinion shows no conflict, we overrule the motion to file it.