Does the record in this case justify the Supreme Court in finding and holding, as a matter of fact, that the action of the Court of Civil Appeals for the Ninth Supreme Judicial District, in setting aside its order overruling the first motion for a rehearing, was for the sole purpose of indirectly extending the period of time during which a petition for a writ of error might validly be filed, such action constituting a deliberate fraud upon the appellate jurisdiction of the Supreme Court?
In my opinion it does not; and upon that proposition alone I dissent from the order granting the motion to dismiss the appeal for want of jurisdiction in the Supreme Court.
The judgment of the Court of Civil Appeals affirming the judgment of the trial court in favor of appellee,, the First State Bank of Conroe (defendant in error), and against appellants, Fred and Mary Henningsmeyer *Page 118 (plaintiffs in error), was rendered on December 14, 1916, and its order overruling the original motion for a rehearing was made and entered on February 14, 1917. Not until more than thirty days later, on May 10, 1917, was the petition of plaintiffs in error for a writ of error filed in the Court of Civil Appeals.
Revised Statutes, article 1541, expressly requires that a petition for a writ of error "shall be filed with the clerk of the Court of Civil Appeals within thirty days from the overruling of the motion for a rehearing"; and it is well settled that failure to file such petition until after the expiration of that stated period is fatal to the appeal. The Supreme Court, in an opinion by Phillips, J., now Chief Justice, said: "It is essential to the jurisdiction of this court to grant a writ of error that the petition for the writ be filed in the Court of Civil Appeals within thirty days from the overruling of the motion for a rehearing. Schleicher v. Runge, 90 Tex. 456,39 S.W. 279." Vinson v. Carter, 106 Tex. 273, 166 S.W. 363.
However, after said original motion for a rehearing had been overruled, appellants filed a second motion for a rehearing which was overruled by the court on April 11, 1917, and, it will be observed, within the statutory period of thirty days next thereafter, said petition for writ of error was filed; and upon these facts arises the contention of plaintiffs in error that their petition for a writ of error was filed seasonably.
The principal ground upon which the motion to dismiss the appeal rests is: "Because it is apparent from the face of the record that the setting aside by said Court of Civil Appeals for the Ninth Supreme Judicial District of its order of date February 14, 1917, overruling plaintiff in error's motion for a rehearing on the 14th day of February, 1917, and overruling plaintiff in error's amended motion for rehearing on the 11th day of April, 1917, was done for the express purpose of enabling plaintiffs in error to avoid the consequences of their own neglect in failing to file in said court their petition for writ of error within thirty (30) days from said 14th day of February, 1917, and said proceedings were and are in direct opposition to rule 65, governing the practice in the Courts of Civil Appeals."
But inasmuch as the term of court tit which said order overruling said first motion for a rehearing was made had not ended when said order setting aside the order overruling said first motion for a rehearing was entered, and inasmuch as that court unquestionably had authority, at any time during its term, and even of its own volition, had there been no second motion for a rehearing, to set aside its previous order overruling said first motion for a rehearing, and to grant a rehearing in the cause, there arises, I think, upon the undisputed facts of this case, as shown by the record, a presumption of law that said order of April 11, 1917, setting aside said order overruling the original motion for a rehearing and overruling said second motion for a rehearing was entered by the Court of Civil Appeals in good faith, and that so much thereof *Page 119 as set aside said former order was made by that court in the belief that probably, or possibly, there was error in the original judgment of that court in that cause, and that, upon renewed consideration of the questions involved, that court again reached the conclusion that its judgment as originally entered therein was correct, and that, as a consequence, said second motion for a rehearing was overruled accordingly.
The facts relied upon by the defendant in error to overcome the above mentioned presumption of good faith upon the part of the Court of Civil Appeals in making its said order of April 11, 1917, are as follows:
In said petition for a writ of error it is stated:
"The appellants, thereafter, on January 4, 1917, filed their motion for rehearing in the Court of Civil Appeals, wherein they complained of all of the errors hereinafter assigned, and said motion, after having been duly submitted and considered, was by the Court of Civil Appeals overruled by an order entered on February 14, 1917. On April 2, 1917, the appellants filed an amended motion for rehearing; this motion is an exact copy of the motion filed on January 4, 1917, except an addition thereto alleging that the clerk of the court had failed to give appellants or their attorneys of record any notice of the action of the court in overruling the motion for rehearing, and that neither appellants nor their attorneys had knowledge or notice of the entry of the order overruling appellants' motion until the expiration of more than thirty days from the date of the order, and the motion prayed for a rehearing, or, in the alternative, that the order overruling the original motion entered v. Freeman,83 Tex. 529, 17 S.W. 783, 18 S.W. 963; Abstract Co. of appellants to have the judgment of the Court of Civil Appeals reviewed by petition for writ of error might be preserved."
Said final order of April 11 is as follows: "Former order entered on February 14, 1917, overruling motion for a rehearing is set aside; and the amended motion for a rehearing is overruled."
Rule 65 prescribed by the Supreme Court for Courts of Civil Appeals is as follows:
"Upon the rendering of the judgment in the Court of Civil Appeals, as well as upon the making of an order overruling the motion for a rehearing, the clerk shall immediately give notice by postal card to the attorneys of the respective parties of the disposition made of the cause or of the motion, as the case may be, for which service he shall tax the usual fee as a part of the costs in the case. But the mailing of such notices shall not relieve the parties of the responsibility of taking notice of the disposition of the cause or motion, and the failure to receive a notice so mailed shall be no excuse for delay in taking future action as may be desired in reference to the case within the time prescribed by the statutes and rules."
It is, therefore, clear that failure to file the petition for a writ of error within the statutory period can not properly be excused, condoned, or disregarded by the Court of Civil Appeals or by the Supreme *Page 120 Court upon the sole additional ground for a rehearing pleaded in said second motion.
Furthermore, it must be conceded that the fact that, with the exception of the additional statements showing want of notice or knowledge of the overruling of the first motion for a rehearing, the second motion was an exact copy of the first motion for a rehearing, coupled with the fact that said second motion candidly prayed that the former order overruling the original motion for a rehearing be set aside in order that the right of appeal might be preserved, and the further fact that the court undertook, byone and the same order, to set aside its former order refusing a rehearing and to overrule said second motion therefor, do strongly suggest that such final order was not really made by the court solely upon the merits, or pretended merits, of said second motion for a rehearing, or in good faith, but, if not for the purpose, still, under such circumstances as to serve, in the language of the attorneys for the defendant in error, "to cloak the negligence of the plaintiffs in error in failing to file their petition for writ of error within the time required by law." Indeed, that view of the matter is borne in upon my mind so strongly that I might feel impelled to act upon it, as a matter of duty in the protection of the jurisdiction of the Supreme Court, had that court no other protection or recourse; but such is not the case.
Our State Constitution expressly declares: "The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction." Sec. 3, art. 5.
Revised Statutes, article 1525, is as follows: "The Supreme Court shall have the power, upon affidavit or otherwise, as the court may determine, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction."
The stated power of that court has been exercised in numerous instances. Harris v. Hopson, 5 Tex. 529; Dial v. Rector,12 Tex. 99; Johnson v. Robeson, 27 Tex. 526 [27 Tex. 526]; Moke v. Brackett, 28 Tex. 443; Hart v. Mills, 31 Tex. 304; Simmons v. Fisher,46 Tex. 126; Fine v. Freeman, 83 Tex. 529 [83 Tex. 529], 17 S.W. 783, 18 S.W. 963; Abstract Co. v. Bahn, 87 Tex. 582, 29 S.W. 646, 30 S.W. 430; Ellis v. Brooks, 101 Tex. 591, 102 S.W. 94,103 S.W. 1196. See, also, City of Austin v. Nalle, 85 Tex. 550 [85 Tex. 550], 22 S.W. 668, 960.
It is peculiarly applicable, I think, to the facts and circumstances of this case, as indicated by the record, and should be appropriately exercised therein preliminarily, in determining, definitely and unmistakably, if possible, whether said final order of the Court of Civil Appeals really was made in good faith or in fraud of the appellate jurisdiction of the Supreme Court.
Whenever conclusive evidence thereon reasonably is obtainable, the *Page 121 presumptions of regularity and good faith should attach to all orders of all courts until such presumptions shall have been overthrown.
Opinion delivered June 20, 1917.
ON MOTION FOR REHEARING. The motion for rehearing was overruled per curiam without written opinion.