Paggi v. Rose Mfg. Co.

On Motion to Certify to Supreme Court. This case was reversed and remanded on February 16, 1924, by a majority of the court. Mr. VAUGHAN, associate justice, dissented on conclusions of law material to the decision of the case. Under article 1620, Revised Statutes, as amended by the Thirty-Eighth Legislature (c. 38, p. 72, printed Session Acts), extending the scope of the statute so as to authorize the certification of questions involved in cases appealed from the county as well as from the district courts, the questions involved in the dissent would have been certified if a timely motion for the certificate had been filed.

The motion of appellees for rehearing was overruled on March 15th, and the motion asking the court to certify to the Supreme Court, was not filed until March 21st. To grant the motion the order heretofore entered by the court overruling appellees' motion for rehearing would have to be set aside. The court has the power to set aside the order; but, under our view, there exists no good reason for such action, and we are unwilling to do so for no purpose except to certify the case. This would, in our opinion, be a precedent for a practice the tendency of which would be to delay the final disposition of appealed cases. This course seems to have been followed by the San Antonio Court of Civil Appeals in First National Bank of Eagle Lake v. Robinson, 135 S.W. 1115. In that case the motion was based on conflicting decisions of different courts. In disposing of the motion, among other things, the court said:

"We think that, in order to entitle a party to insist upon the certification of a question as a matter of right, he should lay a basis for it and bring the fact of conflict to the attention of the court in his motion for rehearing, or before his motion is finally acted upon."

If our refusal to certify the dissent would deprive appellees of any legal right under the circumstances, a different question would be presented, but it does not do so. Appellees, by reason of the dissent have the legal right to take the ease to the Supreme Court on writ of error for its decision of the material questions of law involved. Vernon's Ann.Civ.St. Supp. 1918, art. 1521.

The motion to certify is refused.