Opinion
No. 6944.
Decided October 13, 1937. Rehearing overruled December 8, 1937.
Practice in the Supreme Court — Application for Writ of Error.
The Supreme Court will dismiss an application for writ of error previously granted when its attention is called to the fact that same has been granted without authority of law.
Error to the Court of Civil Appeals for the Sixth District, in an appeal from Rusk County.
Suit by John B. Enfield against S. O. Thompson and others for an alleged indebtedness of $4,867.51 for expense money to acquire oil and gas property in Rusk County, Texas, to be held by them equally and all sums received therefrom were to be divided by them, first to return to Enfield the money he had advanced and the remainder to be divided equally. Judgment was entered by the trial court for Enfield, whereupon defendants filed their amended motion for judgment which was overruled by the court. The Court of Civil Appeals refused to take jurisdiction and dismissed the case, and defendants have brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section B, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Application, having been inadvertently granted, is dismissed.
Phillips, Trammel, Chizum, Estes Edwards, of Fort Worth, for plaintiffs in error.
Massingale Belew, of Fort Worth, for defendant in error.
The Court of Civil Appeals refused to take jurisdiction of this case on the ground that the appeal sought to be filed in that court was not filed within the time required by law. Plaintiffs in error's application for the writ filed in this Court following the order of dismissal was granted on May 29, 1935. On the same date the writ was granted defendant in error filed herein a motion to dismiss the application on the ground that it fails to disclose that the matters therein complained of by defendant in error were complained of in a motion for rehearing filed in the Court of Civil Appeals. The application for the writ does not point out or state that any of the rulings sought to be reviewed here were assigned as error in a motion for rehearing in the Court of Civil Appeals.
It is the settled practice in this Court when the matter is called to its attention to dismiss an application for writ of error granted without authority of law, as it was in this case. Leonard Bros. v. Newton, 129 Tex. 1, 101 S.W.2d 223; Knodel v. Equitable Life Ins. Co., (Com. App.) 221 S.W. 941; Employers' Cas. Co. v. Roland, (Com. App.) 1 S.W.2d 568; Blackmon v. Trail, (Com. App.) 12 S.W.2d 967. See also in this connection City National Bank in Childress v. Phillips Petroleum Co., 124 Tex. 456, 78 S.W.2d 576, and Grayce Oil Co. et al. v. Peterson et al., 128 Tex. 550, 98 S.W.2d 781; Glenn, Receiver, v. McCarty, 130 Tex. 641, 107 S.W.2d 363; Casualty Reciprocal Exchange v. Dawson, 130 Tex. 362, 107 S.W.2d 994.
The writ having been inadvertently granted, defendant in error's motion to set aside the order granting same and to dismiss the application, is granted.
Opinion adopted by the Supreme Court October 13, 1937.
Rehearing overruled December 8, 1937.