Opinion
No. 7300.
Decided December 8, 1937.
1. — Appeal and Error — Application for Writ of Error.
An application for writ of error which does not show that a motion for rehearing was filed in the Court of Civil Appeals does not comply with the Rules of the Supreme Court, and having been improvidently granted should be dismissed.
2. — Motions — Application — Time.
A motion to amend an application for writ of error, showing that a motion for rehearing had been filed in the Court of Civil Appeals, filed after the Supreme Court has acted upon said application, comes too late and is overruled.
Error to the Court of Civil Appeals for the Seventh District, in an appeal from Lubbock County.
Suit by the Citizens Savings Bank Trust Company of St. Johnsbury, Vermont, and H. C. Glenn, Receiver for Temple Trust Company, against W. E. Spencer and others, including Lubbock National Bank, to recover on a note for $3,200.00, drawn in favor of the Citizens Savings Bank Trust Company, and to foreclose a first mortgage on 160 acres of land in Lubbock County, Texas, and on a note for $480.00 in favor of H. C. Glenn as receiver for the Temple Trust Company, and to foreclose a second mortgage on the same land. Judgment was rendered for plaintiffs as against Spencer, but on the cross action of the Lubbock National Bank judgment was rendered for it against Spencer, and, in case Spencer could not pay, then against plaintiffs. This judgment was affirmed in part and in part reversed by the Court of Civil Appeals ( 105 S.W.2d 671), and plaintiffs have brought error to the Supreme Court. Lubbock National Bank also filed application.
Applications dismissed for want of jurisdiction.
Critz Woodward, of Coleman, and Jno. B. Daniel, of Temple, for plaintiffs in error.
Vickers Campbell and Robt. A. Sowder (for Lubbock National Bank), all of Lubbock, for defendants in error.
This Court granted a writ of error on the original application of The Citizens Savings Bank Trust Company of St. Johnsbury, Vermont, and H. C. Glenn, as receiver for Temple Trust Company, to review the judgment of the Court of Civil Appeals, which affirmed in part and reversed in part the judgment of the trial court. 105 S.W.2d 671. Because of the granting of such application, this Court also granted the applications for writs of error of Robert Petit et al. and Lubbock National Bank.
The original application for writ of error of The Citizens Savings Bank Trust Company of St. Johnsbury, Vermont, et al. failed to show that a motion for rehearing had been filed in the Court of Civil Appeals, presenting the points on which the writ was based. Subsequent to the granting of the writ, plaintiffs in error filed a motion to amend the application so that it would show that a motion for rehearing had been filed in the Court of Civil Appeals. That motion is now pending before this Court.
1, 2 The original application of The Citizens Savings Bank Trust Company of St. Johnsbury, Vermont, et al. failed to comply with the rules of this Court in the respect above stated, and the writ was improvidently granted. The motion to amend the application was filed after this Court had acted upon the application, and under the authority of H. C. Glenn, Receiver, v. A. V. McCarty, Jr., et al., 130 Tex. 641, 110 S.W.2d 1148, this day announced, the motion was filed too late. Therefore, the motion for leave to amend the application is overruled. The order of this Court heretofore entered granting the writ of error is set aside, and the application for writ of error is hereby dismissed.
We have again examined the applications of Robert Petit et al. and Lubbock National Bank, and find no reason why they should be granted; and since they were granted because of granting the application of The Citizens Savings Bank Trust Company of St. Johnsbury, Vermont, et al., the order of this Court heretofore entered, granting such applications for writs of error, is set aside, and such applications for writs of error are hereby dismissed for want of jurisdiction.
Opinion delivered December 8, 1937.