Rhodes v. McDonald, C.J. , 141 Tex. 478 ( 1943 )

The relator has filed in this Court a motion for leave to file an original petition for writ of mandamus to compel the Court of Civil Appeals at Fort Worth to certify to the Supreme Court the points of dissent, as provided in Rule 463, Texas Rules of Civil Procedure, in the case of Rhodes v. Turner now pending in that court. The majority of the Court of Civil Appeals affirmed a judgment of a county court at law for less than two hundred dollars. Chief Justice McDonald dissented. The petition for mandamus is based solely on the ground that there was a dissent by one of the justices of the Court of Civil Appeals.

1, 2 From the facts stated in the majority and dissenting opinions we are of the opinion that the case turns upon the sufficiency of the evidence to support the judgment, a matter over which this Court has no jurisdiction. It follows that this case presents no question of law to be certified under the provisions of said Rule 463. Furthermore, there is nothing in the petition for writ of mandamus, or in such of the record as has been brought up in connection therewith, that leads us to believe that the majority opinion is incorrect. This Court will not do the useless thing of requiring the Court of Civil Appeals to certify a case to this Court unless it reasonably appears from the record that if the motion for leave to file should be granted we would hold, upon a consideration of the motion on its merits, that the Court of Civil Appeals entered an incorrect judgment in the cause.. Aetna Life Ins. Co. v. Gallagher, 127 Tex. 553, 94 S.W.2d 410, par. 2. Consequently the petition in this case lacks merit.

The motion for leave to file the petition for writ of mandamus is overruled.

Opinion delivered July 14, 1943.

Rehearing overruled October 20, 1943.