In this cause the Court of Civil Appeals declined to affirm on certificate, for the reason that no proper notice of appeal had been given, and therefore the Court was without jurisdiction. 108 S.W.2d 840.
In the case of Smith v. Free, 130 Tex. 23,107 S.W.2d 588, there was presented precisely the same situation as we have here. In that case it was held that the action of a Court *Page 467 of Civil Appeals in refusing to affirm on certificate was not a final judgment from which an appeal could be prosecuted to the Supreme Court. Upon authority of that case it appears that the writ of error in this instance was improvidently granted.
We are advised by counsel that this cause has reached the Court of Civil Appeals by writ of error, just as did the case of Smith v. Free, and the objection to the action of the Court in refusing to affirm on certificate may be preserved when the cause is considered by the Court of Civil Appeals on its merits.
The application for writ of error is therefore dismissed for want of jurisdiction.
Opinion adopted by the Supreme Court July 5, 1939.