HENNINGSMEYER et al. v. FIRST STATE BANK OF CONROE, 195 S.W. 1137

PHILLIPS, C. J. The judgment of the Court of Civil Appeals was adverse to the plaintiffs in error. Their motion for rehearing was overruled on February 14, 1917. Their counsel, it appears, did not learn of the overruling of the motion until the lapse of more than thirty days after the date of' the court’s order. They then filed, on April 2, 1917, an amended motion for rehearing, an exact copy of the original, adding only a. statement as to the failure of the Clerk to give them notice of the court’s action on the motion, and their want of knowledge of its action until more than thirty' days had elapsed.

The prayer was for a rehearing, but, if that were not granted, that the former order be set aside, “in order that the-right of appellants to have the judgment of the Court of Civil Appeals reviewed by petition for writ of error might be preserved.” On April 11, 1917, the Court of Civil Appeals-by the same order, set aside its order overruling the original motion and overruled the amended motion. The petition for writ of error was filed in the Court of Civil Appeals on May 10, 1917. We think the motion to dismiss should be granted.

In order for this court to have jurisdiction upon petition for writ of error,, it is required, as a condition precedent, that the petition be filed with the Clerk of the Court of Civil Appeals within thirty days-from the overruling of the motion for rehearing in that court. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279. The statute on the subject (article 1541) is imperative, and, must be complied with. If merely to have-additional time for the filing of the petition, for writ of error successive motions for rehearing may be filed, the statute is rendered of no effect.

There is nothing in this record which even remotely suggests that the order that set aside the former order, overruling the original motion, and overruled the amended motion, was for any other purpose than to permit the filing of the petition for writ of error as within the time required by law, in, accordance with the appellants’ request. We. do not think that fact could be ascertained any more certainly than it here appears.

Under such circumstances, we regard it as our duty to treat the time of the overruling of the-original motion as the date from which should be reckoned the thirty days allowed for the filing of the petition for writ of error. We wish to add that we do not question the authority of the Court of Civil Ap-. peals to set aside its former order, or to make, after its original action in a case, any further orders it might deem proper. It has full control of its judgments during its term. Nor have we any purpose to in anywise cast a doubt upon the good faith of its action.

To relieve a seeming hardship it doubtless felt constrained to grant the appellants’ request. We simply rule that under the circumstances stated we do not consider its action as binding upon us; and that, to give effect to the statute, our duty, under such circumstances, is to require, as essential to our jurisdiction, that the petition for writ of error be filed within thirty days from the overruling of the original motion for rehearing. It was not filed within that time, and the motion to dismiss is accordingly granted. ©u^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes