Opinion
Decided November 7, 1907.
1. — Appeal — Dismissal.
A motion to dismiss an appeal pending a writ of error in the same case will be refused when the purpose of dismissing the appeal is confessedly for delay.
2. — Writ of Error — Jurisdiction.
A Court of Civil Appeals has no jurisdiction of a writ of error after an appeal in the same case has been adjudicated by such court.
Error from the District Court of Liberty County. Tried below before Hon. L. B. Hightower.
Lanier Martin, for plaintiff in error.
G. H. Pendarvis, for defendant in error.
This writ of error was prosecuted from a judgment of the District Court of Liberty County, rendered on the 13th day of August, 1906, denying plaintiff in error an injunction restraining the execution of a judgment theretofore rendered against him in said court in favor of defendants in error, and dissolving the temporary injunction previously granted. From this judgment refusing to perpetuate the temporary injunction plaintiff in error in due time prosecuted an appeal to this court. Shortly before the day on which said appeal was set for submission in this court, the appellant, having previously sued out this writ of error and the service and record therein having been completed and filed in this court, moved to dismiss his appeal "without prejudice." Counsel who presented this motion candidly admitted that the purpose of suing out the writ of error and asking a dismissal of the appeal, which was then ready for submission, was to delay a hearing and decision of the case.
Under these circumstances we declined to grant the motion to dismiss the appeal. Thereafter, at the last term of this court, the case was submitted upon appeal and after due consideration by this court the judgment of the court below was affirmed. From this judgment of affirmance a writ of error has been denied by the Supreme Court. The case having been finally decided upon its merits by this court on appeal we have no jurisdiction to entertain a writ of error from the same judgment from which said appeal was prosecuted, and the writ of error is therefore dismissed.
Dismissed.
Writ of error refused.