Opinion
No. 6942.
Decided July 28, 1937. Rehearing overruled December 8, 1937.
1. — Writ of Error.
An application for writ of error which does not state that any of the decisions or rulings sought to be reviewed was assigned as error in a motion for rehearing in the Court of Civil Appeals and does not state that a motion for rehearing was filed does not comply with Rule 1 for the Supreme Court and should be dismissed.
2. — Writ of Error — Refusal of Application.
The refusal by the Supreme Court of an application for writ of error signifies its approval of the action of the Court of Civil Appeals from which the application was made, and the subsequent granting of the application in another case involving exactly the same state of facts was improvident.
Error to the Court of Civil Appeals for the Eleventh District, in an appeal from McLennan County.
Suit by the Casualty Reciprocal Exchange against Wade H. Dawson, to set aside an award by the Industrial Accident Board, under the Workmen's Compensation Law, in which claimant filed a cross action. Judgment in favor of Dawson was affirmed by the Court of Civil Appeals ( 81 S.W.2d 284) and the Casualty Exchange has brought error to the Supreme Court.
Order granting application set aside and application dismissed.
E. C. Gaines, of Austin, for plaintiff in error.
Tirey Tirey, of Waco, for defendant in error.
1 Since submission of the cause it is found that the application for writ of error fails to comply with Rule No. 1 for the Supreme Court, which provides that the application shall state that the particular decision or ruling sought to be reviewed was assigned as error in the motion for rehearing in the Court of Civil Appeals. The application for writ of error does not state that any of the decisions or rulings sought to be reviewed was assigned as error in a motion for rehearing in the Court of Civil Appeals and does not state that a motion for rehearing was filed. The application therefore was improvidently granted and it becomes necessary, in accordance with the settled practice, to dismiss it. Leonard Bros. v. Newton, 129 Tex. 1, 101 S.W.2d 223; Glenn, Receiver, v. McCarty, 130 Tex. 641, 107 S.W.2d 363, decided July 7, 1937.
2 The application was granted on an assignment of error complaining of the decision of the Court of Civil Appeals that the evidence did not show approval by the Industrial Accident Board of a compromise agreement. Upon exactly the same state of facts it was held in Petroleum Casualty Co. v. Lewis, 63 S.W.2d 1066, decided by the Court of Civil Appeals at El Paso, that there was not a final approval of a compromise agreement by the Industrial Accident Board; and this Court's refusal of the application for writ of error signified its approval of such decision of that Court of Civil Appeals. For this additional reason the application for writ of error filed herein was improvidently granted.
The order granting the application for writ of error is set aside and the application is dismissed.
Opinion adopted by the Supreme Court July 28, 1937.
Rehearing overruled December 8, 1937.