Opinion
No. 6880.
Decided February 9, 1938.
Application for Writ of Error — Rules of Court.
A motion to dismiss an application for writ of error must be sustained when the application fails to comply with the Rules for the Supreme Court by showing that a motion for rehearing was filed in the Court of Civil Appeals, presenting the questions on which the application for the writ was based.
Error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.
Suit by Franklin Brothers against Standard Manufacturing Company but which in reality was a suit brought by the Abilene Plumbing Company against the State of Texas and the Board of Control. On the day of the trial the members of the Board of Control, individually, were dismissed and upon a hearing judgment was rendered against the State for $1,861.20 with interest. The suit was under permission of a House Concurrent Resolution to recover amount held back by the Board of Control under original contract for labor and material furnished in the construction of a dormitory for the Abilene State Hospital. This judgment was affirmed by the Court of Civil Appeals ( 78 S.W.2d 294), and the State has brought error to the Supreme Court.
The order of the Court granting the writ of error is set aside and the application for writ of error dismissed.
William McCraw, Attorney General, and Earl Street, Assistant Attorney General, for plaintiff in error.
Smith Eplen, of Abilene, and Cofer Cofer, of Austin, for defendants in error.
The Court of Civil Appeals affirmed the judgment of the trial court in this cause. 78 S.W.2d 294. A writ of error was granted.
The application for writ of error failed to show that a motion for rehearing had been filed in the Court of Civil Appeals presenting the questions on which the application for the writ was based. It is shown that the Court of Civil Appeals filed its original opinion, and on motion for rehearing withdrew such original opinion and substituted therefor the opinion cited above. No motion for rehearing was made complaining of the questions decided in the substituted opinion rendered by the Court of Civil Appeals.
Defendants in error have filed a motion to dismiss said application because it does not comply with the Rules of this Court requiring that such motion for rehearing must be filed. Both the motion and the cause have been submitted to and are now pending before this Court for decision.
The application having failed to comply with the Rules of this Court in the respect above stated, the writ was improvidently granted. By virtue of the ruling made by this Court in the following cases the motion of defendants in error must be sustained: Glenn et al. v. McCarty et al., 130 Tex. 641, 110 S.W.2d 1148; Citizens Savings Bank Trust Co. of St. Johnsbury, Vt., et al. v. Spencer et al., 110 S.W.2d 1151; Grand Lodge Colored Knights of Pythias of Texas v. Adams, 110 S.W.2d 1152; Watkins v. Texas Employers Ins. Assn., 110 S.W.2d 1153.
The order of this Court heretofore granting the writ of error is set aside, and the application for writ of error is hereby dismissed.
Opinion delivered February 9, 1938.