Opinion
Motion No. 13351.
Decided February 16, 1938.
Mandamus — Plea of Privilege.
A motion to file a petition for mandamus in the Supreme Court, based upon conflict of decisions, will be overruled without prejudice when it appears that the case alleged to be in conflict with a decision of the Supreme Court on the question of the sustaining of a plea of privilege did not in fact finally dispose of that question, but remanded the case for a new trial.
Original proceeding in mandamus by the Pure Oil Company seeking to compel the Honorable Justices of the Court of Civil Appeals for the Sixth District, at Texarkana, and certain other parties, to certify to the Supreme Court certain questions of law as set out in relator's petition for writ of mandamus.
Motion for leave to file petition for mandamus is overruled without prejudice.
Vinson, Elkins, Weems Francis, and C. E. Bryson, all of Houston, and Wynne Wynne, of Wills Point, for relators.
This is a motion to file petition for mandamus filed in this Court by Pure Oil Company against the Honorable Justices of the Court of Civil Appeals at Texarkana and certain other parties. By its petition, which accompanies the motion to file, the Pure Oil Company contends that the opinion of the Court of Civil Appeals in cause No. 5154, J. T. Thompson et al., Appellants, v. Pure Oil Company et al., Appellees, 113 S.W.2d 662, is in conflict with the holding of the Supreme Court in Shell Petroleum Corporation v. Grays et al., 122 Tex. 491, 62 S.W.2d 113. The appeal to the Court of Civil Appeals grew out of an interlocutory order of the district court of Smith County sustaining a plea of privilege filed by Pure Oil Company in cause No. 5371-A in that court. As shown by the opinion of the Court of Civil Appeals in that case that court did not finally dispose of the plea of privilege, but remanded the cause for a new trial. When the plea of privilege is again tried in the district court, an entirely different record may be presented.
The motion to file petition for mandamus is overruled, without prejudice to the right of the Pure Oil Company, or any other interested party, to again present the matter of conflict to this Court in a proper way, if such conflict should appear on another appeal. Of course, we do not intend to here express any opinion on the alleged issue of conflict.
Opinion delivered February 16, 1938.