William H. Kellett v. Callie R. Kellett, 94 Tex. 206

GAINES, Chief Justice. At'a former day of this term, the application for the writ of error in this case was dismissed for want of jurisdiction. The suit was for a divorce and for the determination of the rights of property of the respective parties. The Court of Civil Appeals affirmed the decree of divorce, but reversed the judgment as to the disposition of the property and remanded the cause for a new trial with respect thereto.

In his petition for the writ, the applicant averred that the decision of the Court of Civil Appeals “practically settles the case,” and accompanying his motion he has filed an agreement to that effect, signed by counsel for both of the parties. In order to give this court jurisdiction over a remanded cause, the statute requires not only that the applicant shall allege that the judgment of the Court of Civil Appeals “practically settles the case,” but that this fact must be shown in .the petition for the writ of error.

In other words, it must appear from the opinion and judgment of the appellate court that the case and all the issues in the case are in effect determined. Rev. Stats., art. 941. Whether such be the effect of the decision in this case, we need not decide. If the case is practically determined, the fact removes but one difficulty in the way of our assuming jurisdiction. Among other provisions,

article 996 of the Revised Statutes prescribes that “the judgment of the courts of civil appeals shall be conclusive in all cases upon the facts of the case, and a judgment of such courts shall be conclusive on the law and fact, nor shall a writ of error be allowed thereto from the Supreme Court in the following eases, to wit: $ ^ $ ^5 $ “2. All cases of slander and divorce.” The words, “all cases of * * * divorce,” are as comprehensive as language can be made; and if this be a divorce case, our jurisdiction is excluded. That it is such we think there can be no doubt.

Though it involves rights of property, it is none the less a divorce ease. The action is for a dissolution of the bonds of matrimony, existing between the parties. Incidental thereto is the determination of the rights of property held in the name of either or both of them. If the Legislature had desired to except such a ease from the rule which excludes our jurisdiction over divorce cases, it seems that they would have said so in plain terms. On the contrary, the use of the word “all” is significant that no exception was intended.

We still think that we are without jurisdiction over the application for the writ of error and accordingly the motion for a rehearing is overruled. Overruled.