Relator has filed a motion praying that the Court immediately notify the Court of Civil Appeals for the Third Supreme Judicial District of its decision made May 30, 1934, in answer to questions certified by said Court of Civil Appeals. The motion is based upon that part of Article 1759, Revised Civil Statutes of 1925, which provides in substance that the opinion rendered by the Supreme Court on the record and certified question of law presented shall be the law on the question involved until said opinion shall have been overruled by the Supreme Court or abrogated by legislative enactment, and that the Court of Civil Appeals shall be governed thereby, and further, that after the question is decided the Supreme Court shall immediately notify the Court of Civil Appeals of its decision.
7 This article of the statutes must be read and construed in connection with Article 1762 which gives to a party to a cause the right to file a motion for rehearing "within fifteen days from the date of entry of the judgment or decision of the court, and not later." An opinion rendered in answer to certified questions is a decision of the court within the meaning of that article.
It has been the practice for many years to permit the filing of motions for rehearing within the fifteen day period prescribed by the statute as well in causes in which questions certified by courts of civil appeals are answered as in causes in which judgments are rendered here. For the sake of orderly procedure, and because two different courts should not at the same time have jurisdiction of a particular issue or question in a case, Article 1759 is construed to mean that the Supreme Court shall notify the Court of Civil Appeals of its decision in answer to a certified question immediately upon the expiration of the fifteen day period allowed for the filing of a motion for rehearing, in the event no motion is filed, and immediately following its action upon the motion, in the event a motion filed within the time specified is overruled.
8 It is suggested in the motion filed by Relator that the Respondent Dorenfield may take advantage of the full periods of time allowed for the filing of motion for rehearing here, *Page 477 for the filing of motion for rehearing in the Court of Civil Appeals following a decision of the case there, and for the filing of an application for writ of error, and thus delay the final disposition of the case, and it is alleged in the motion that during all of such time said Respondent will continue to exercise the powers and duties of a member of the Texas Relief Commission. But, in view of the decision which has been made herein that the Speaker of the House of Representatives was not legally vested with the authority to remove Respondent Holliday from his office as a member of the Texas Relief Commission, and that the action of the Speaker as detailed in the certificate was wholly ineffectual to remove him, and further in view of serious questions that might be raised as to the validity of any action of the Texas Relief Commission dependent upon the vote of Respondent Dorenfield as a member, it is not to be assumed that Respondent Dorenfield would pursue such course of delay as is suggested in the motion, or would attempt to act as a member of the Commission; and it is not to be contemplated that the Texas Relief Commission would permit him to act, or recognize him, as a member, or that it would refuse to recognize Respondent Holliday as a member.
The Court feels assured that Respondent Dorenfield and his attorneys will not unduly protract this litigation, by the statement of his attorneys in their motion to advance and certify that "the question involved is an important question, and as this court judicially knows, it is of vital importanceto the people of the State of Texas that said Relief Commissionfunction efficiently, and it cannot do so until this questionis determined once for all." (Italics ours.)
9 After the final decision of this case by the Court of Civil Appeals there will be no period of delay for the filing of an application for writ of error. This Court acquired jurisdiction of the case through the certification of questions of law by the Court of Civil Appeals. The questions were not certified by the Court of Civil Appeals upon its own motion, but upon the motions of the Relator and the Respondent Dorenfield. The motion filed by the latter states in substance that the controlling question in the case is the right of the Speaker of the House of Representatives to remove his appointee for cause, and it requests that this question be certified because it is an important question which should be speedily decided by the Supreme Court. The Relator's motion to certify "adopts and approves the grounds and reasons contained in appellant's motion to advance and certify." In its certificate the Court of *Page 478 Civil Appeals states that "all parties have moved to certify the controlling questions to your Honors, which motions were granted, in view of the importance of the questions involved, and the necessity for as speedy a final adjudication thereof as may be practical."
By these matters of record, therefore, it is shown that the Relator and the Respondent have in their motions to certify agreed that the case is controlled by the determination of the question as to the right of the Speaker to remove the Respondent Holliday from his office as a member of the Commission, and that the Court of Civil Appeals in granting the motions has certified that question, together with the question whether the action of the Speaker was legally effectual, as the questions which control the case. It is apparent that the answers which have been made to the questions are decisive of the entire case. The statutes provide that the Court of Civil Appeals shall be governed by such answers, that its judgment shall be in harmony with the decision of the Supreme Court in making the answers, and that such decision shall be binding upon the Court of Civil Appeals. Revised Civil Statutes, 1925, Articles 1759, 1851, 1854.
When parties to a case have thus by their filing of motions to certify obtained a decision of the Supreme Court upon the controlling questions in the case, they cannot take the same case (which, being the same case, is of course controlled by the same questions) again to the Supreme Court by filing an application for writ of error. They have elected one remedy, or one method of appeal, to obtain a decision of the questions of law, and should not be permitted thereafter to resort to another remedy or another method of appeal for the purpose of obtaining another decision of the same questions by the same court.
In Campbell v. Wiggins, 85 Tex. 451, 22 S.W. 5, it was held that a party to a cause, who had by his motion obtained certification by the Court of Civil Appeals of a question on which there was dissent, could not thereafter by application for writ of error take the case to the Supreme Court, even though the application sought revision of a ruling of the Court of Civil Appeals on which all the judges concurred and which could not be revised on the certificate of dissent. Chief Justice Stayton said in the opinion:
"* * * The law does not contemplate that this court shall hear and determine in piecemeal the many questions of law that may be decided or involved in a cause, and that on some a decision may be made on certificate of dissent, and after this on writ of error all other questions of law may be heard and *Page 479 decided; but it does give to the litigant the right to use either remedy in a cause in which both are applicable, and he must determine for himself whether the question on which there is dissent is the only question vital to his right decided against him; and when he so determines, must be held to his election, and to have waived all questions other than such as he may have revised in the manner selected.
"The judgment of the Court of Civil Appeals was final in character; from it a writ of error might be granted on which all questions of law could have been revised; but applicant saw proper to pursue another remedy, more restricted in its operation, and he must be held thereby to have waived all right now to have writ of error, and to have waived all questions that could not be revised under the remedy selected.
"The laws look to the speedy termination of litigation, and do not permit delay that would necessarily result if, from a judgment final in character, two or more effective appellate proceedings, the one following the decision invoked in the other, might be used for the purpose of revising errors that could have been reached by a single remedy."
Even though the instant case was not certified following dissent in the Court of Civil Appeals, the reasons for the decision in the case cited have peculiar application, because the parties have deliberately elected to obtain by certification a decision by this Court of questions which they agree control the case.
The text of Texas Jurisprudence, under the title "Appeal and Error — Civil Cases," contains the following statement, citing in its support Campbell v. Wiggins, supra:
"* * * Where the Court of Civil Appeals on its own motion certifies a question, a litigant is not cut off from a right to prosecute a writ of error. But where a party by motion obtains a certification of certain questions he may not later obtain a writ of error to bring up other questions involved in the decision; by obtaining a certification he waives all questions other than such as he may have raised in the manner selected." (3 Texas Jurisprudence, 317.)
The general rule as to election of remedies, or methods of review, is thus stated, with citations of many authorities, in Corpus Juris:
"When a party has more than one remedy for review in a particular case, he must generally elect under which he will proceed, and, when he does elect a particular remedy, he waives all others, unless he is entitled to prosecute both remedies at the same time. * * * *Page 480
"Where a party has brought a proceeding for appellate review and it has been prosecuted to a final determination by the appellate court, the general rule is that unless there have been new proceedings in the cause, he cannot again bring the same case up for review. Thus, as a general rule, where a party has appealed or sued out a writ of error, and the appeal or writ of error has been determined, he cannot afterward again take the case up for review by appeal or writ of error, or have a review or another pending appeal or writ of error. Nor can he bring up the same point which was decided or might have been decided on appeal, by a new appeal in the same cause, even by stipulation of the parties. * * * Upon the same principle, after a party has prosecuted to final judgment a complaint for review, he cannot afterward appeal from the original judgment. And it has been held that the final determination of an appellate proceeding will bar another proceeding in the same case, presenting the same questions for review, even though the proceedings are in different courts." (3 Corpus Juris, pp. 342-345.)
For the reasons stated and under the authorities cited, this case may not again be brought to this Court by writ of error. This being true, it will be the duty of the Court of Civil Appeals, when its judgment becomes final, to issue its mandate immediately and without permitting any period of time to elapse for the filing of an application for writ of error.
For the foregoing reasons the motion is overruled.