Opinion
No. 6912.
Decided July 7, 1937.
1. — Appeal and Error — Affirmance on Certificate.
The right of an appellant to abandon his appeal and resort to a writ of error is subject to the superior right of the appellee to have the judgment of the trial court affirmed on certificate.
2. — Judgment — Affirmance on Certificate.
Only final judgments of Courts of Civil Appeals may be reviewed by the Supreme Court upon writs of error, and an order affirming a case on certificate is a final judgment, but where a motion to affirm on certificate is overruled, the issues on the merits of the appeal are left open for future determination, and such decree is therefore interlocutory and not a final judgment.
3. — Assignment of Error — Appeal and Error.
Where a motion to affirm on certificate has been overruled and case subsequently reversed and remanded by the Court of Civil Appeals, it is proper for the plaintiff in error to assign such ruling on the motion to affirm as error in his motion for rehearing timely filed in that court and in his application for writ of error duly filed after said motion was overruled.
Error to the Court of Civil Appeals for the Sixth District, in an appeal from Upshur County.
Suit upon two promissory notes brought by H. E. Smith, against J. W. Free. A judgment in favor of Smith was reversed and remanded by the Court of Civil Appeals ( 80 S.W.2d 419). In bringing the case to the Court of Civil Appeals the defendant gave notice of appeal and filed supersedeas bond and then abandoned the appeal, and filed application for writ of error. The plaintiff sought to have the judgment of the trial court affirmed on certificate by filing motion to that effect within reasonable time after the appeal had been abandoned and at the same term of the Court of Civil Appeals to which it was returnable. This motion was overruled by the Court of Civil Appeals and the case reversed and remanded, and plaintiff 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.
The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed on certificate.
Hill, Greer Franke, of Mission, for plaintiff in error.
The order of the Court of Civil Appeals overruling the motion to affirm on certificate and refusing to dismiss the writ herein is not a final judgment and since such action is erroneous the court had the power and it was its duty to revise or change the order at a subsequent term of court. Harding v. City of Raymondville, 58 S.W.2d 55; Welch v. Weiss, 99 Tex. 356, 90 S.W. 160; Red v. Bounds, 122 Tex. 614, 63 S.W.2d 544; Cardwell v. Bell, 59 S.W.2d 419.
C. E. Florence and Edwin M. Fulton, of Gilmer, for defendant in error.
The opinion of the Honorable Court of Civil Appeals in this case is reported in 80 S.W.2d 419. Under the views which we entertain of the controlling question presented we find it unnecessary to make a statement of the issues involved on the merits of the suit.
1 In 1933 the Court of Civil Appeals overruled a motion of plaintiff in error seasonably filed to affirm the judgment of the trial court on certificate as provided by R. S. Art. 1841. The facts presented by the certificate were essentially the same as those in the cases of Jarrell v. Farmers and Merchants State Bond Bank of Poth, 128 Tex. 332, 99 S.W.2d 281; Heywood-Wakefield Co. v. Brady, 128 Tex. 371, 101 S.W.2d 224, and Irlbeck v. State, 129 Tex. 608, 106 S.W.2d 262. They need not be detailed here, for, with commendable fairness, defendant in error admits that, in the light of the decision in the Jarrell case, the court erred in overruling the motion to affirm on certificate. Defendant in error perfected his appeal from the trial court's judgment but failed to file the record or motion to extend the time for filing in the Court of Civil Appeals within the statutory time, and thereafter undertook to bring the case to that court by writ of error. Upon the authorities above cited it must be held to be the established rule that the right of an appellant to abandon his appeal and resort to a writ of error is subject to the superior right of the appellee to have the judgment of the trial court affirmed on certificate. Upon this the parties agree.
After the Court of Civil Appeals overruled the motion to affirm on certificate it retained the case on its docket until the year 1935, and then heard and decided it on the merits of the appeal. Its judgment was one reversing the judgment of the trial court and remanding the cause thereto. From that judgment error was timely prosecuted to, and granted by this Court.
The contentions of defendant in error are, that the order of the Court of Civil Appeals entered in 1933 overruling the motion to affirm on certificate was a final, appealable order; that plaintiff in error should have prosecuted a writ of error to this Court from that order within 30 days after the overruling of the motion for rehearing therein, and that, since no application was filed within that time, this Court has no jurisdiction to review that ruling. It is not claimed that the application for writ of error herein was not filed within 30 days after the order overruling the motion for rehearing entered after the case had been finally disposed of on its merits by the Court of Civil Appears, but it is claimed that plaintiff in error lost his right to complain of the ruling on the motion to affirm on certificate by his failure to prosecute a writ of error therefrom in 1933. The controlling question for decision is whether an order of the Court of Civil Appeals overruling a motion to affirm the judgment of the trial court on certificate, under the provisions of R. S. Art. 1841, is a final judgment from which a writ of error may be prosecuted to the Supreme Court.
2 Only final judgments of Courts of Civil Appeals may be reviewed by the Supreme Court upon writs of error. R. S. Art. 1739. An order of the Court of Civil Appeals affirming a case on certificate is a final judgment of that court, for it determines the whole matter in litigation and leaves nothing to be determined in the future. Not so with an order overruling a motion to affirm on certificate. Such an order does not finally determine the issues in controversy, but by its very nature leaves the issues on the merits of the appeal open for future determination. By its decree in refusing to affirm on certificate the court adjudges that it does not terminate the litigation, but leaves the case pending on its docket. Such an order is interlocutory and not a final judgment which this Court may review by writ of error. This precise question was set at rest by the recent decision of this Court in Prince v. Guyer, 129 Tex. 90, 103 S.W.2d 128.
3 Plaintiff in error observed the correct practice. He assigned the ruling on the motion to affirm on certificate as error in his motion for rehearing timely filed after final judgment was rendered by the Court of Civil Appeals, and brought that assignment forward in his application to the Supreme Court for writ of error timely filed after his motion for rehearing was overruled. No other method of having the question reviewed by this Court was available to him.
Plaintiff in error accompanied his certificate with a certified copy of the supersedeas bond on appeal filed by defendant in error. He is therefore entitled to have the judgment affirmed against the sureties as well as against defendant in error. R. S. Art. 1841. It is accordingly ordered that the judgment of the Court of Civil Appeals be reversed and the judgment of the trial court affirmed on certificate as against both the defendant in error and the sureties on his supersedeas bond.
Opinion adopted by the Supreme Court July 7, 1937.