A. R. Wood v. J. R. Harper, Chief Justice, et al., 114 Tex. 133

Hr. Judge CHAPMAN delivered the opinion of the Commission of Appeals

Section A. Relator asked for a mandamus against respondents who are members of the Court of Civil Appeals of the 8th Supreme Judicial District of Texas, requiring said respondents to certify to this court certain questions of law held by said respondents in the case of First State Bank of Big Springs, appellant, vs. A. R. Wood, appellee, 242 S.

W. 781, decided by said respondents June 1, 1922, it being alleged in the application that the decision of respondents in said .case is in conflict with the opinions of other courts of Civil Appeals tof this State on the same questions of law. ' The petition does not affirmatively show that the matters of conflict were called to the attention of the Court of Civil Appeals before the adjournment of that court, and does not affirmatively show that the motion to certify on the grounds of conflict was made before the Court of Civil Appeals adjourned.

The petition as to these matters being as follows: “In due course, A. R. Wood, appellee in said cause, and relator herein, filed a motion for rehearing and for additional findings of fact and conclusions of law, which motion was overruled by the Court of Civil Appeals of the Eighth Supreme Judicial District, of Texas, at El Paso, on the 22nd of June, 1922, and said judgment thereupon became final. Thereafter, in due time, relator A. R.

Wood filed a motion in said court requesting that questions of law involved in the decision of said case be certified to The Supreme Court of Texas for decision, under the provisions of

Article 1623 of the Revised Civil Statutes of 1911, which said motion was by said Court overruled on the 12th day of October, 1922.” The date when the motion to certify was filed should have been stated in the petition and would have been a fact, but the question as to whether the filing was in due time is a matter of law to be determined by this court.

If the motion to certify, wherein the question of conflict, so far as the record shows, was called to the attention of the Court of Civil Appeals for the first time, was not filed until after the court had adjourned, then the judgment of the Court of Civil Appeals had become final, and the court had lost jurisdiction of the case and could not have reopened it, and had no power, either in vacation or at the next term, to certify' the questions ■of conflict.

The record shows that the motion to certify was not overruled by the Court of Civil Appeals until October 12, 1922, which would indicate that the' motion was not filed until after the Court of Civil Appeals had adjourned. However, the date, of filing could very easily have been stated in the petition, but the petition having failed to state this fact, and having failed to show affirmatively that' the Court of Civil Appeals had jurisdiction to grant the relief asked for in" the motion, we are bound to hold that the petition in this respect is not sufficient. We are aware that

Article 1623 of the Revised Civil Statutes requires the Courts of Civil Appeals, in cases of conflict with the decisions of other courts of Civil Appeals, to certify the questions of law to this court, but the Courts of Civil Appeals, even on their own motion, cannot take any action in a ease after their judgment has become final by the term of court expiring and the court having at such time finally disposed of all questions in the case that had been brought to their attention.

We think that this issue has been definitely decided by our Supreme Court in an opinion by Chief Justice Gaines in the case of Western Union Telegraph Co. v. Claude Hudson, 103 Texas, 88, 124 S. W., 85, in the following words: “This is a certificate of a dissent as to the disposition of this case in the Court of Civil Appeals. “The case was submitted to the Court of Civil Appeals and there was a judgment reversing the judgment of the District Court and remanding the cause by a majority of the judges of that court — one of them, however, dissented.

There was a motion for a rehearing which was overruled by a majority — the same judge still dissenting. The motion for a rehearing was overruled on the 3d day of July, 1909, and on the same day the court adjourned for the term. There was no further action taken in the case until July 21, 1909, when the attorney for the appellee filed a motion in the Court of Civil Appeals requesting them to certify the point of dissent to this court for decision. “We are of opinion that the motion to certify was filed too late.

The motion for a rehearing had been overruled and without any other action in the case the court had adjourned for the term. When a court finally adjourns for the term, all matters finally disposed of at that time become fixed and the court has no power to set aside, alter or amend a final judgment. “That the Legislature might have provided for a certificate of a dissent after the adjournment for the term, we have no doubt; but as to this we think it sufficient to say, that in our opinion they have not done so.

There is nothing in articles 1040, 1041 and 1042 of our Revised Statutes which intimates that this may be done. “For the reason given the certificate is dismissed.’’ We recommend that the writ of mandamus be denied. The opinion of the Commission of Appeals is adopted and mandamus is refused. G. M. Cureton, Chief Justice.