Opinion
No. 6868.
Decided May 12, 1937.
Appeal and Error — Application for Writ of Error.
Where the application for writ of error fails to show that a motion for rehearing was filed in the Court of Civil Appeals presenting the points on which the writ of error is sought it will be dismissed.
Error to the Court of Civil Appeals for the First District, in an appeal from Brazoria County.
Suit by Wiley Alliston against John A. Williams upon a check given by Williams to one Graves and alleged to have been assigned to Alliston in such manner as to constitute him a bona fide holder without notice of any infirmity in the check under the Negotiable Instruments Law. Williams answered and defended on the ground that the check was given in consideration for cattle purchased from Graves, and by reason of alleged infirmities in the cattle, many of which died, there was a resulting failure of consideration in the check and that Alliston had notice of such infirmity before he paid full consideration for the check. Judgment of the trial court in favor of Alliston, for the amount of the check less certain amounts as damages for injured stock, was reversed and rendered by the Court of Civil Appeals ( 76 S.W.2d 803) which gave judgment to Alliston for full amount of check, and Williams has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Cause dismissed.
Rucks Enlow, of Angleton, for plaintiff in error.
Carlos B. Masterson, of Angleton, and Perkins Culbertson, of Fort Worth, for defendant in error.
The opinion of the Court of Civil Appeals in this case is reported in 76 S.W.2d 803. We made a careful study of the case in the light of the authorities and arguments presented here and concluded that same had been correctly decided by the Court of Civil Appeals. Thereafter we discovered that on or about submission day the defendant in error had filed a written suggestion that the application for writ of error should be dismissed, because it does not state that the rulings complained of were assigned as errors in a motion for rehearing in the Court of Civil Appeals. We have examined the application in the light of this contention and find that the objection is well taken. By a recent decision of this Court in Leonard Brothers v. Newton, 129 Tex. 1, 101 S.W.2d 223, it was held that an application should be dismissed which does not show that a motion for rehearing was filed in the Court of Civil Appeals presenting the points on which the writ is sought. On the authority of that decision and the many cases therein cited, it is ordered that the order granting the application be set aside and the application be dismissed.
Opinion adopted by the Supreme Court May 12, 1937.