Opinion
No. 4135.
Decided January 7, 1925.
1. — Jurisdiction — Determination of.
An appellate court is the exclusive judge of its own jurisdiction. The clerk of the Court of Civil Appeals could not determine such question for the Supreme Court by refusing to forward to it an application for writ of error filed with him on the ground that it was filed too late, mandate having already issued. (P. 345).
Application by Reeves to the Supreme Court for Writ of mandamus against Roseborough as clerk of the Court of Civil Appeals for the Sixth District.
I.N. Williams, J.F. Wilkinson, Hiram Brown, and J.A. Ward, for relator, cited: Rodgers v. Alexander, 35 Tex. 117; Dillard v. Wilson, 137 S.W. 152; 3 C.J., 1101; sec. 1131; Gulf, C S.F.R. Co. v. Muse, 109 Tex. 352, 207 S.W. 897.
This is an original proceeding by relator, John J. Reeves, to require respondent the Honorable E.T. Roseborough, Clerk of the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas, to forward to this Court relator's application for writ of error in the case of John J. Reeves v. The State, ( 258 S.W. 577).
Relator alleges a full compliance with all requirements of law and the rules of procedure in preparing and filing with respondent Roseborough, as clerk of said court, for transmission to this Court, his said application for writ of error, which was addressed to this Court, but that respondent Roseborough declines to file and forward same to this Court for its consideration.
It appears from relator's written argument in support of his motion for leave to file his petition for mandamus that respondent the Clerk of the Court of Civil Appeals declined to file the petition for writ of error upon the ground that mandate had issued under Art. 6057, R.S., that being the concluding article of Chapter 2, Title 98, relating to removal from office of county and certain district officers. The Article reads:
"When so decided, unless the judgment be for some cause set aside or suspended, the mandate of the court shall issue within five days after the judgment of the court is rendered."
Relator complains that respondent Roseborough has substituted his judgment for that of the Supreme Court as to whether this Court has jurisdiction over the case upon relator's application for writ of error.
It is not at all necessary to discuss the question at length. A court of last resort is the exclusive judge of its own jurisdiction, and necessarily must be. It is generally held that the validity of an appeal and the jurisdiction of the appellate court are to be determined by that Court. 3 C.J., p. 371, Sec. 128, and cases cited; Dillard v. Wilson, 137 S.W. 152. Respondent Roseborough could not determine for this Court its jurisdiction over the case or the effect of the issuance of mandate under Article 6057. However, in this case, upon leave being granted to relator to file his petition for a writ of mandamus, respondent Roseborough filed and forwarded to this Court relator's petition for writ of error. While the petition for mandamus is to be dismissed, we have deemed it advisable to write this short opinion on it.
The petition is dismissed.