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. *Page 65