FRUIT DISPATCH CO. v. RAINEY, Chief Justice et al., 232 S.W. 281

PHIDDIPS, O. J. The relator prays for a mandamus directed to the members of the Honorable Court of Civil Appeals for the Fifth Supreme Judicial District for the certification .to this court of the correctness' of their action in the disposition of a certain case to which relator was a party. The case' was originally a suit in the Justice Court, Precinct No. i, Dallas County, wherein the relator was plaintiff, against certain defendants, and in which on trial in that court relator as plaintiff recovered judgment.

One of the defendants sought to appeal to the County Court at Daw of Dallas County, but as held by the Court of Civil Appeals did not file his appeal bond within the time prescribed by law. A trial was had in the County Court at Daw without its being noticed, apparently, that that court was without jurisdiction on account of the failure to file the appeal bond within the proper time. Judgment was rendered there in favor of the appealing defendant.

Thereupon the relator perfected its appeal from this judgment to the Court of Civil Appeals, and in that court, because of the County Court at Daw’s want of jurisdiction, moved that the Court of Civil Appeals reverse the judgment of the County Court at Daw and remand the cause to that court with instructions to dismiss tile appeal from the Justice Court. The Court of Civil Appeals, however, did not so dispose of the case.

According to its opinion which accompanies the petition for mandamus, it held that the County Court at Daw had no jurisdiction of the appeal from the Justice Court, and reversed the judgment of the County Court at Daw and dismissed the relator’s appeal, the effect of which necessarily was to tax the relator with the costs of the appeal.

On the ground that the jurisdiction of the Court of Civil Appeals was final in the case and that such disposition of it was in conflict with the holdings of other Courts of Civil Appeals, the relator thereupon moved the court to certify the question to this court for determination, and now seeks a mandamus to require such certification. In accord with the holding of this court in Pecos & N. T. R. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, and Turnbow v. Bryant Co., 107 Tex. 563, 181 S. W. 686, it is held in Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618; Fort Worth & R. G. R. Co. v. Mathews, 169 S.

W. 1052, and in Dupree v. Massey, 180 S. W. 668 — decisions by the Courts of Civil Appeals for the Second, Third, and Seventh Districts, respectively, that on the appeal to the Court of Civil Appeals of a cause of which the trial court did not have jurisdiction, the proper practice is not to dismiss the appeal but to reverse the judgment and remand the cause with the direction that it be dismissed. Other decisions of the Courts of Civil Appeals are to the same effect The conflict between the holding of the Court of Civil Appeals in its disposition of the present case and these decisions is evident.

Since the case is one of which the jurisdiction of the Court of Civil Appeals is final, the mandamus is accordingly awarded. <S=oFor other cases see same toDic and KEY-NUMBER in all Key-Numbered Digests and Indexes