Mary J. Durst et al. v. John S. McCampbell, 91 Tex. 147

GAINES, Chief Justice. This is an application for a writ of error to a judgment of the Court of Civil Appeals which reversed the judgment of the District Court and remanded the cause. In order to show jurisdiction in this court, it is alleged in the petition for the writ that the decision of the Court of Civil Appeals is in conflict with the decision of the Supreme Court in the same case reported in 73 Texas, 410, upon the question whether or not the action was barred by the statute of limitations of four years.

It is impossible to determine from the report of the case upon the former appeal whether that question was passed upon by this court or not. By referring to the original transcript on that appeal, we find that the appellants assigned error in the action of the trial court in overruling their exception to the petition upon the ground that the action was barred by the statute of limitation. But the briefs-which were filed upon that appeal have been lost from the file; and we cannot ascertain, whether the assignment was carried into the brief or not. If not, it was waived and the question was not before the court.

If it was, the question was presented and we think it is fairly to be presumed, that the court held the assignment not well taken. If so, then there is a conflict between that decision and that of the Court of Civil Appeals. Thinking it probable that a copy of the brief referred to "may be procured and presented to this court and that it will show definitely whether the assignment was presented or not, we will suspend action upon the application for two weeks, so as to give counsel an opportunity to- procure and present such copy.

If presented, it should be accompanied with satisfactory evidence that it is a true copy of the original filed in the Supreme Court. Delivered May 20, 1897. GAINES, Chief Justice. On a former day of this term we announced that we would suspend action upon the application in this case, in order to give the applicants an opportunity of showing that the seventh assignment of error upon the former appeal was presented by the brief of appellant filed upon that appeal.

In that assignment of error it was complained that the trial court erred in overruling a special exception to the petition which set up that the action was barred by the statute of limitation of four years. Printed copies of two briefs have been presented, one signed by Wells & Hicks, Stanley Welch and Mason & Carr as attorneys for the appellant—the other by Wells & Hicks and Waul & Walker as such attorneys. The latter is the more elaborate brief of the two, and was, as we think, intended as an amendment and substitution of the former.

We infer also that the latter is the brief which came to the hands of the reporter. The

summary of the points made for appellant is taken from the brief upon which the names of Wells & Hicks and Waul & Walker appeared as counsel in the case. McCampbell v. Durst, 73 Texas, 411. Besides, it appears from the brief of appellees, a copy of which has also been furnished us and which seems to be an answer to the first brief mentioned, that the latter was objected to in many particulars, upon the ground that it was not in compliance with the rules. It was especially objected that no statements were made under many of the propositions.

The brief signed by Wells & Hicks and by Waul & Walker is not subject to these objections. We think that it is reasonably to be inferred from these facts that the last mentioned brief was filed to cure the defects in the former, and that it was upon this brief that the case was submitted and decided. The assignment of error which, as stated above, raises the question of the bar of the statute of limitations of four years is not presented in this brief.

We conclude, therefore, that the question was not before this court upon the former appeal; and the -conclusion is strengthened by the fact that no allusion to the point is made in the elaborate opinion of Judge Acker upon which the case was then reversed. If presented it must have been passed upon by the court adversely to the appellant on that appeal, although not referred to in the opinion; and the decision of the Court of Civil Appeals would have been in conflict with that decision upon that point. But since we conclude that the question was not presented on the former appeal, we find no conflict.

Since the decision of the Court of Civil Appeals does not overrule the -decision of this court, as claimed in the writ of error, the application is ■dismissed for want of jurisdiction. Delivered June 3, 1897.