At a former term of the Supreme Court, on application of the appellant, and on recommendation of this section of the Commission of Appeals, a writ of mandamus was awarded, requiring the Court of Civil Appeals for the Sixth Supreme Judicial District to certify the question here submitted. G.C. S.F. Ry. Co. v. Wilson, 113 Tex. 581, 261 S.W. 368. The question certified having also been referred to this section of the Commission of Appeals, and report in a written opinion having been made recommending answer to the question the Supreme Court, on November 4, 1925, approved the opinion and ordered same certified to the Court of Civil Appeals. Ante, p. 121,277 S.W. 96. Thereafter, on suggestion that the Court of Civil Appeals is without jurisdiction of the case, it having been finally disposed of in that court prior to the date of the filing of motion to be permitted to file application for writ of mandamus, this court on the 20th day of January, 1926, made and entered an order vacating and setting aside its order approving the opinion filed herein, and directing same certified.
The facts are these: The judgment of the trial court was affirmed by the Court of Civil Appeals on October 8, 1917. No motion for rehearing was filed within the time prescribed by statute. A motion to be permitted to file a motion for rehearing was overruled on December 20, 1917. Thereafter a motion to certify was filed based on the ground that the ruling of the *Page 240 Court of Civil Appeals in this case is in conflict with that of the Court of Civil Appeals of the Second District in the case of G.C. S.F. Ry. Co. v. Blankenbeckler, 13 Texas Civ. App. 249[13 Tex. Civ. App. 249], 35 S.W. 331. This last motion was overruled on January 31, 1918. After the expiration of the term of the Court of Civil Appeals during which the above proceedings were had, the appellant, seeking to have the question in conflict certified, on the 12th day of September, 1918, filed in the Supreme Court its motion to be permitted to file application for writ of mandamus.
From this statement it is clear that the Court of Civil Appeals had finally disposed of the case, and was without jurisdiction to certify a question arising on a conflict of its holding with that of another court of civil appeals at the time the mandamus proceedings were instituted. LaPrelle v. Key, 114 Tex. 1,261 S.W. 366.
In the mandamus proceedings no contention was made by the respondents that the Court of Civil Appeals was without jurisdiction to certify a question in conflict; nor, was any such contention made by appellee herein prior to the approval of our former opinion. The question, however, is a jurisdictional one, and can not be waived.
We now recommend that the question certified be dismissed.
Certified question dismissed for want of jurisdiction as recommended by the Commission of Appeals.
C.M. Cureton, Chief Justice.