(dissenting).
Believing that the majority opinion is in conflict with an opinion and rulings of our Supreme Court, and the opinions of at least two courts of civil appeals, and is not a correct interpretation of Art. 2249a, I cannot concur in that opinion, but most respectfully dissent. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680; United Emp. Cas. Co. v. Skinner, Tex.Civ.App., 141 S.W.2d 955, writ refused; Blankenship v. Stallings, Tex.Civ.App., 141 S.W.2d 957, writ dismissed.
This judgment was rendered September 7, 1939. Service of citation in error was not had until after January 1, 1940; in fact, not until February 21, 1940. Under a fact situation which furnishes no ground for distinction between it and the present case (and none is attempted), the Waco Court of Civil Appeals, in United Employers Cas. Co. v. Skinner, 141 S.W.2d 955, writ refused, held that the appeal by writ of error must be dismissed. In said case, plaintiff in error participated in the trial of the case resulting in a judgment on July 10, 1939; it filed its petition and bond for writ of error in December, 1939, but failed to obtain the issuance and service of citation in error until after January 1, 1940. That court held that by virtue of Art. 2249a (Vernon’s Texas Statutes, 1939 Cumulative Supplement) plaintiff in error had lost its right to have the judgment reviewed by the court of civil appeals by writ of error. In the present case, plaintiffs in error participated in the trial of the case, judgment was rendered September 7, 1939, petition for writ of error and bond were filed December 30, 1939, citations were issued February 17, 1940, and served on February 20 and 21, 1940.
The majority is of the opinion that the decision in United Emp. Cas. Co. v. Skinner, supra, is wrong. The Supreme Court refused a writ of error. The question decided was that a litigant who participated in the trial of a case on July 10, 1939 (less than six months before January 1, 1940), and failed to perfect his appeal by writ of error before January 1, 1940, by virtue of Art. 2249a, had lost his right to have a court of civil appeals review the judgment; stated differently, that thereby the court of civil appeals lost jurisdiction to so review the case. The sole question was whether said statute required dismissal of the appeal. The majority opinion says that the recorded vote was insufficient to put the Act (Art. 2249a R.S.1939) into immediate effect upon its passage as stated in the Skinner opinion; that the Act, therefore, did not become a law until January 1, 1940, and that said mistake accounts for the refusal of a writ of error by the Supreme Cpurt, because the Supreme Court naturally assumed the correctness of the statement by the Court of Civil Appeals that the vote was sufficient to put the Act into immediate effect.
If the vote were insufficient to put the Act into immediate effect, it became a law ninety days after adjournment of the Legislature, or about September 21, 1939. Either immediately, or ninety days after adjournment, this Act became a law and operated thereafter as legal notice to plaintiffs in error, and all others, that on January 1, 1940, their right to take their case to a court of civil appeals by writ .of error would cease to exist. Popham v. Patterson, 121 Tex. 615, 624, 51 S.W.2d 680.
The result is the same whether the law became effective immediately, or ninety days after adjournment.
The case of Parker v. Bailey, Tex.Com.App., 15 S.W.2d 1033, has no application here, because there is no Supreme Court decision contrary to its action in refusing a writ of error in the Skinner case. If the principle announced in Odum v. Garner, 86 Tex. 374, 25 S.W. 18, were otherwise applicable to the present situation, it is not controlling, because it cannot be said that as applied to the facts of the instant case there was not reasonably sufficient time in which to perfect a writ of error. See Blankenship v. Stallings, Tex.Civ.App., 141 S.W.2d 957, writ dismissed.
I am of the opinion that under the authorities cited, which are approved by .the Supreme Court, it is our duty to dismiss the appeal.