Sumner v. Gen. Cont. Pur. Corp. , 125 Tex. 51 ( 1935 )

This suit was brought in the district court for a balance of $552.50, with a small amount of interest, and for attorneys' fees in the sum of $90.00. It also sought foreclosure of the mortgage on an automobile alleged to be of the value of $550.00. Judgment of the district court was in favor of the defendant, plaintiff in error here. This judgment was reversed by the Court of Civil Appeals and the cause remanded.49 S.W.2d 960.

It is obvious that this court has no jurisdiction of this case in the absence of conflict in decision with the decision of some other court. While the petition for writ of error alleges a conflict with certain decisions, we have carefully examined same and find there is no conflict such as is necessary in order to confer jurisdiction on this court. The Court of Civil Appeals merely held that under a certain state of facts an automobile dealer was unauthorized to refinance defendant in error's note with another company. The fact that the Court of Civil Appeals set aside the finding of the jury upon this issue does not show a conflict with prior decisions holding generally that ordinarily the question of whether or not one party is agent for another is a question of fact. Under the decision of City National Bank in Childress v. Phillips Petroleum Company, 78 S.W.2d 576 (Com. App), and authorities there cited, it is obvious that there was no such conflict of decision as to give this court jurisdiction. The writ of error was therefore improperly granted.

The application was not granted upon the conflicts alleged, and the granting of same was no doubt due to the opening statement in the opinion of the Court of Civil Appeals to the effect that "this suit was filed in the district court of Lubbock County by appellant against appellee to recover on a note for the sum of $1,095, interest, attorneys' fees, and costs, and for a foreclosure of a mortgage lien upon a certain automobile." The suit was in fact for only a balance upon this note.

The writ of error is dismissed for want of jurisdiction.

Opinion adopted by the Supreme Court April 3, 1935.