On Motion to Certify. Appellant has filed a motion to certify in this case, based upon the dissenting opinion of Associate Justice E. F. HIGGINS.
This is a county court case. Upon an examination of chapter 8, tit. 32, R.S. 1911, relating to the certification of questions to the Supreme Court, it will be observed there are three separate articles of the statute relating to certification. One of the articles is 1619, formerly 1043, which gives to the Court of Civil Appeals the right to certify questions in any case pending in said courts whenever there arises an issue of law which it should deem advisable to present to the supreme Court for adjudication. Under this article of the statute it was immaterial whether the case was a district or county court case. Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567.
By article 1620, R.S. 1911, formerly 1040, it is provided that, when any Court of Civil Appeals shall in any cause render a decision in which any one of the judges therein sitting shall dissent as to any conclusion of law material to the decision of the case, and said judge enters the ground of his dissent of record, then said court shall, upon motion of the party to the cause, or on its own motion, certify the point or points of dissent to the Supreme Court. In cases governed by this article of the Revised Statutes of 1911 a case which originated in the county court could not be certified to the Supreme Court; it having been held in Herf v. James, 86 Tex. 230, 24 S.W. 396, that the judgment of the Court of Civil Appeals in such a case is final, and the Supreme Court would have no jurisdiction thereof.
By article 1623 of the Revised Statutes of *Page 883 1911 provision is made for certification whenever any one of the Courts of Civil Appeals arrives at an opinion in the decision of a case which may be in conflict with an opinion theretofore or thereafter rendered by some other Court of Civil Appeals on any question of law, and such court refuses to concur with the opinion in conflict with the opinion so arrived at by the first-mentioned court.
By chapter 55 of the General Laws of the Thirty-Third Legislature certain statutes relating to the jurisdiction of the Supreme Court were amended, and article 1521 of the Revised Statutes was amended so as to read as follows:
"The Supreme Court shall have appellate jurisdiction coextensive with the limits of the state, which shall extend to questions of law arising in civil causes in the Courts of Civil Appeals in the following cases when same have been brought to the Courts of Civil Appeals by writ of error, or appeal, from final judgments of the trial courts:
"(1) Those in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision.
"(2) Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any such question of law.
"(3) Those involving the validity of statutes.
"(4) Those involving the revenue laws of the state.
"(5) Those in which the Railroad Commission is a party.
"(6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion of the Supreme Court, erroneously declared the substantive law of the case, in which case the Supreme Court shall take jurisdiction for the purpose of correcting such error."
And article 1522 of the Revised Statutes was amended so as to read as follows:
"All causes mentioned in article 1521 may be carried to the Supreme Court either by writ of error or by certificate from the Court of Civil Appeals as elsewhere provided, except those mentioned in subdivision 6, which must be presented by application for writ of error."
In the case of Bank v. Powell (Tex.) 163 S.W. 581, it was expressly held by the Supreme Court that it had jurisdiction by certified question in no case except it be embraced in one of the first five subdivisions of article 1521. We must therefore look to the provisions of article 1521 as amended to determine whether or not the Supreme Court would have jurisdiction in this case by certified question. By the first subdivision of said amended article it is to be observed that the Supreme Court has jurisdiction by certified question in those cases in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision. This subdivision corresponds to article 1620 of the Revised Statutes. By subdivision 2 of amended article 1521, it is to be observed that the Supreme Court has jurisdiction by certified question in those cases in which one of the Courts of Civil Appeals holds differently from a prior decision of its own or of another Court of Civil Appeals or of the Supreme Court upon any such question of law. This subdivision corresponds to article 1623 of the Revised Statutes of 1911. Said amended article 1521 contains no provisions corresponding to the provisions of article 1619, Revised Statutes 1911.
In Cole v. State (Tex.) 170 S.W. 1036, and McFarland v. Hammond (Tex.)173 S.W. 645, it was expressly held that article 1591, R.S. 1911 was not repealed by said chapter 55, Gen. Laws 33d Leg. Referring back now to the above-cited case of Herf v. James, it will be noted that the Supreme Court based its holding that it had no jurisdiction by certified questions by reason of the dissent by one of the judges of the Courts of Civil Appeals in county court cases because, by the fifth section of the act of May 13, 1893,* the judgment of the Courts of Civil Appeals in such county court cases was made final. Article 1591, R.S. 1911, is in almost the same language and in substance is to the same effect as the fifth section of said act of May 13, 1893. It thus appears that the Supreme Court in this case would have no jurisdiction by certified question unless it be upon the ground of the dissent herein. While there has been some change in the verbiage of the statute, yet the statute at present relating to certification in cases of dissent is, in substance, the same as section 32 of the act of May 13, 1893. Article 1591, R.S. 1911, is now in force, and is, in substance, the same as the fifth section of the act of May 13, 1893. We thus have this situation: In Herf v. James it was held that in county court cases, wherein a dissent was filed, the Supreme Court had no jurisdiction under section 32 of the act of May 13, 1893 (to which section subdivision 1 of amended article 1521 corresponds), because such section 32 was controlled by section 5 of the same act (to which section article 1591, R.S. 1911, corresponds), because in such cases the provisions of section 5 made final the judgment of the Court of Civil Appeals; and in Cole v. State and McFarland v. Hammond it is distinctly held that said article 1591, R.S., relating to cases in which the Courts of Civil Appeals is made final, is not repealed by said chapter 55, Gen. Laws 33d Leg. The conclusion thus follows that as to county court cases subdivision 1 of amended article 1521 is controlled by article 1591, R.S.; that in such cases the Supreme Court has no jurisdiction by certified question, because the judgment of the Court of Civil Appeals is final.
It might be that the analogy of the rule announced in Herf v. James is destroyed by amended article 1522, quoted above, but, as we understand the opinions in Cole v. State and McFarland v. Hammond, there is no qualification to the holding there made that article 1591 is not repealed by said chapter 55. In the light of that holding, we are constrained to the view that in cases of this *Page 884 character the rule announced in Herf v. James is applicable, for which reason the motion to certify is overruled.
* See supplemental opinion following.
Supplemental Opinion.