Opinion
Application No. 25323.
Decided January 29, 1941.
Writ of Error — Evidence — Jurisdiction.
Where the only question presented by the application for a writ of error is on the admissibility of the evidence, and the evidence involved does not necessarily control the case, the jurisdiction of the Supreme Court is not legally invoked.
Application for writ of error to the Court of Civil Appeals for the Third District, in an appeal from Coke County.
Suit by Mrs. B.E. Davis, surviving wife of Jeff D. Davis, deceased, as a contest of the will of the said Davis and to annul the order of the county court admitting it to probate on the ground of testator's mental incapacity to make the same, and because of the undue influence practiced upon him in the making of said will. The jury answered both questions against her and judgment was rendered in the district court probating the will. Both the verdict and the judgment were attacked because of illegal evidence offered by proponent on the issue of mental capacity of testator. The Court of Civil Appeals affirmed the judgment, 144 S.W.2d 445, holding the evidence admissible and competent, and plaintiff, alleging that said decision is in conflict with former decisions of the said court of civil appeals and decisions by the Supreme Court, has brought error to the Supreme Court.
The application is dismissed for want of jurisdiction.
G.S. Arnold, of Robert Lee, and Upton, Upton Baker, of San Angelo, for plaintiff in error.
W.A. Wright and D.I. Durham, both of San Angelo, for defendant in error.
This cause is before this Court on application for writ of error. The matters presented to this Court by the application involve only the questions of the admissibility of evidence. The evidence involved does not necessarily control the case. The jurisdiction of this Court is therefore not legally invoked. The application for writ of error is "DISMISSED W.O.J.," meaning this Court is without jurisdiction. Merchants' Cotton Oil Co., Inc. v. Acme Gin Co., 121 Tex. 91, 42 S.W.2d 777; Browder v. Memphis Independent School District, 107 Tex. 535, 180 S.W. 1077.
Opinion delivered January 29, 1941.