Saigh v. Monteith, C.J. , 147 Tex. 341 ( 1948 )

I respectfully dissent from that part of the opinion of the majority in which the Court takes jurisdiction of and decides the question whether the plaintiff in trial court, respondent here, can maintain venue in Harris County under Subdivision 5 of Article 1995 by reason of the written contract dated March 24, 1944. The reason for this dissent is that this Court is wholly without jurisdiction of that question.

As shown by the copy of the transcript from the District Court, respondent Anderson Brothers Corporation, in response to relator's plea of privilege to be sued in the county of his residence, asserted by controverting affidavit the right to maintain venue in Harris County under Subdivision 5 of Article 1995 on account of the provisions of each of the two contracts on which it sued. Appeal was taken to the Court of Civil Appeals from the order of the District Court which overruled the plea of privilege. The Court of Civil Appeals in affirming the trial court's order in that case, Saigh v. Anderson Brothers Corporation, held that venue could be maintained in Harris County because one of the written contracts, that dated August 8, 1945, bound the defendant to perform the obligations of the contract in Harris County. The Court of Civil Appeals made no decision and expressed no opinion on the question whether the obligations of other written contract, that dated March 24, 1944, were performable in Harris County, stating in its opinion that since the contract of August 8, 1945, fixed venue in Harris County, it would "forego examining" the contract of March 24, 1944. 211 S.W.2d 357.

This cause had its origin in the filing by the relator of a petition for mandamus to compel the Court of Civil Appeals to certify to this Court the question of law decided by that Court with respect to the contract of August 8, 1945, on the ground that its decision of that question as set out in its opinion conflicts with the decisions and opinions of other courts of civil appeals cited in the petition for the writ.

The majority opinion of this Court considers and decides the question as to the contract of August 8, 1945, holding that the decision and opinion of the Court of Civil Appeals in Saigh v. Anderson Brothers Corporation as to the contract of August 8, 1945, are in conflict with the decision and opinion of the Court of Civil Appeals in Pack v. Dittlinger Dare, 136 S.W.2d 636, cited in the petition for the writ of mandamus, and holding further that the Court of Civil Appeals erred in its decision that the contract of August 8, 1945, fixed venue in Harris County.

The majority opinion goes further, however. It examines and considers the contract of March 24, 1944, and holds that venue cannot be maintained in Harris County under that contract. In making this decision, this Court goes outside of its jurisdiction, as clearly appears from the Constitution, the statutes and the decisions which defines its jurisdiction.

Section 3 of Article V of the Constitution "fixes the boundaries of the judicial power of the Supreme Court." The Court's jurisdiction is "appellate only" except as specified in the section. The Supreme Court's jurisdiction as fixed by the Constitution is of two classes only, appellate jurisdiction and original jurisdiction. Neither general supervisory jurisdiction nor advisory jurisdiction over other courts is given to the Supreme Court under the Constitution, and such jurisdiction cannot be conferred by the legislature. Morrow v. Corbin,122 Tex. 553, 561-563, 62 S.W.2d 641; Railroad Commission v. Mackhank Petroleum Co., 144 Tex. 393, 396, 190 S.W.2d 802; Curtis v. Moore, 130 Tex. 396, 399, 110 S.W.2d 1146.

The jurisdiction of this Court in this case is original, not appellate. This is an original proceeding under the original jurisdiction to issue writs of mandamus conferred upon the Court by the legislature pursuant to the last sentence in the first paragraph of Section 3 of Article V. This Court has no appellate jurisdiction over the cause that was appealed to the Court of Civil Appeals, since the appeal was taken from an interlocutory order, the order overruling the plea of privilege. In that appeal the jurisdiction of the Court of Civil Appeals is final. Article 1821, Revised Civil Statutes of 1925 as amended by Chapter 33, Acts Regular Session, 41st Legislature; Stevens v. Wilson,120 Tex. 584, 39 S.W.2d 1088; Jackson v. McClendon, 143 Tex. 577, 578, 187 S.W.2d 374.

We look to the statutes to determine what original jurisdiction has been conferred upon the Supreme Court by the legislature to issue writs of mandamus, for "the Court can only exercise original mandamus jurisdiction where authorized by law." Malone v. Rainey, 133 Tex. 622, 623, 133 S.W.2d 951. Article 1733 of the Revised Civil Statutes authorizes the Supreme Court to issue writs of mandamus "agreeable to the principles of law regulating such writs" against the courts of civil appeals or the judges thereof, and thus confers upon the Court the original jurisdiction contemplated by the Constitution. Pickle v. McCall,86 Tex. 212, 218, 24 S.W. 265. Article 1855 (now Rule 462) provides that where a decision of a court of civil appeals is in conflict with an opinion rendered by the Supreme Court or some other court of civil appeals on any question of law, the courtshall transmit to the Supreme Court for adjudication the question of law involved in the cause wherein said conflict of opinion has arisen. This article of the statute imposes the mandatory duty upon the court of civil appeals to transmit or certify the question to the Supreme Court and it gives the Supreme Court jurisdiction to answer the question certified, if there is a conflict. And under Article 1733 the Supreme Court has jurisdiction and authority to issue the writ of mandamus to require the court of civil appeals to perform its duty to certify the question of law, when there is a conflict and that court has refused to perform the duty. Simpson v. McDonald, 142 Tex. 444, 447, 179 S.W.2d 239. McCurdy Daniels v. Connor, 95 Tex. 246,66 S.W. 664. Since the adoption of the Texas Rules of Civil Procedure the Court, after granting leave to file a petition for mandamus to certify a question on the ground of conflict, sets the petition down for hearing and decision both of the question whether there is a conflict and of the merits of the question involved in the conflict. Rule 475.

It is very clear that the jurisdiction of the Court in this original proceeding depends upon the existence of conflict. If there is no conflict, the Court of Civil Appeals is under no duty to certify the question, and if the Court of Civil Appeals is under no duty to certify the question, this Court has no jurisdiction to compel it to do so. It is clear also that the Court's jurisdiction, after the petition for mandamus has been filed, extends no further than to a decision of the question whether there is a conflict, and consequently whether the Court has jurisdiction, and to a decision of the question of law involved in the conflict after it has been determined that there is a conflict.

Grote v. Price, 139 Tex. 472, 475, 163 S.W.2d 1059, like this case, was an original proceeding for mandamus against the Court of Civil Appeals to require it on account of conflict to certify a question of law involved in a plea of privilege case. The Court said:

"In a proceeding of this nature this Court has no jurisdictionto compel the Court of Civil Appeals to certify questions of lawfor our determination unless the decision of the Court of CivilAppeals is in conflict with the holding of the Supreme Court orsome Court of Civil Appeals upon a question of law necessary tothe decision. Rule 462, Texas Rules of Civil Procedure; Harris v. Willson, 122 Tex. 323, 59 S.W.2d 106; Wright v. Dunklin,132 Tex. 188, 123 S.W.2d 301, syl. v. Consequently, in order todetermine whether we have jurisdiction we must first determinewhether such a conflict exists." (Emphasis added.)

Jackson v. McClendon, 143 Tex. 577, 187 S.W.2d 374, consistently with the rule last quoted, follows the correct procedure in such a case. Motion for leave to file the petition for mandamus having been granted and the case submitted, the Court considered first the question of jurisdiction, that is, whether the conflict existed, and finding that there was no conflict, set aside the order which had granted leave to file the petition and dismissed the petition.

The conflict that gives jurisdiction to the Supreme Court in original proceedings like this is a conflict in opinions. Article 1855 uses both the word "decision" and the word "opinion." The caption and the emergency clause of this statute as originally enacted in 1899 show that the purpose of its enactment was to prevent conflict in opinions of the court of civil appeals on questions of law. Chapter 98, Acts Regular Session, 26th Legislature. It is settled by decisions of this Court that the conflict out of which jurisdiction arises in conflict in opinions and that the Court looks to the opinions to determine whether there is a conflict. "It is now definitely settled that the conflict must exist upon the face of the opinions themselves". Employers Casualty Co. v. National Bank of Commerce, 140 Tex. 113, 114, 166 S.W.2d 691; Dockum v. Mercury Insurance Co.,134 Tex. 437, 440, 135 S.W.2d 700. It is true that the two cases cited relate to Article 1821 and 1728, which make the judgments of the courts of civil appeals in county court cases final except "in cases involving conflicts between decisions of the Courts of Civil Appeals or between a decision of a Court of Civil Appeals and a decision of the Supreme Court." But the conflict to which those articles refer is of the same nature and is measured in the same way as the conflict to which Article 1855 relates. Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825; Sun Mutual Insurance Co. v. Roberts, Willis Taylor, 90 Tex. 78, 37 S.W. 311; Layton v. Hightower, 118 Tex. 166, 12 S.W.2d 110; Mooers v. Hunter (Com. App.) 67 S.W.2d 860.

It follows from the statutes and decisions discussed that if there is no opinion of the court of civil appeals on the particular question there can be no conflict between its opinion or decision and an opinion of the Supreme Court or of some other court of civil appeals, and that since there can be no conflict, there is no jurisdiction in the Supreme Court either to require certification or to decide the question. In the instant case, therefore, this Court is without jurisdiction to decide the question as to venue under the contract of March 24, 1944, because the Court of Civil Appeals made no decision of that question and in its opinion expressly stated that it was not even examining that contract. There was no opinion on the question and there is no conflict, and consequently there is no jurisdiction.

The opinion of the majority seeks to justify its deciding the question of venue under the contract of March 24, 1944, by the citation of Uvalde Rock Asphalt Co. v. Hightower, 135 Tex. 410,144 S.W.2d 533, and the citation of several cases involving the extent of the authority of the Supreme Court or a court of civil appeals in a case where the Court had an exercised appellate jurisdiction. In the Hightower case questions were certified by a court of civil appeals under Article 1851. After examining the certificate and the tentative opinion, the Court dismissed the certificate because it found that the questions certified were "but abstract questions of law", that answers to them "would amount to no more than an advisory opinion upon an abstract question of law" and would "furnish no basis for an adjudication of the issues involved". That decision is in no way an authority in the instant case. For the Court to decline to answer certified questions for the reasons given in the High tower case is quite different from the action of the majority opinion in this case of deciding a question over which it has no jurisdiction whatever.

The opinion of the majority seems to argue that on the authority of the Hightower case the Court should or would refuse to answer the question of venue under the contract of August 8, 1945, and should or would dismiss the case or deny the writ but for the fact that to do so would be manifestly unjust to the relator. The Hightower case lends no support to the argument. There, according to the opinion, the questions which the Court declined to answer were neither material nor necessary to a decision of the case by the Court of Civil Appeals. Here the question whether venue can be maintained in Harris County under the contract of August 8, 1945, is both material and necessary to a decision of the case pending in the Court of Civil Appeals. The plaintiff claims venue under both contracts. The trial court overruled the plea of privilege, holding that there is venue in Harris County. The trial court's decision was erroneous if the obligations of neither of the two contracts were performable in Harris County under Section 5. That the Hightower case is not an authority even by analogy in this case is further shown by State v. Callahan, 91 Tex. 313, 314-315, 43 S.W. 12, which hold that it is not a sound objection to the consideration and determination of a question certified by a court of civil appeals that there are other questions in the case which must be determined before a decision of the point certified becomes necessary. The relator in the instant case is entitled to a determination of the question as to the contract of August 8, 1945. His petition brings his case within Article 1855 and Article 1733. The Court of Civil Appeals in its opinion has decided the question. Its decision is in conflict with the opinion of another court of civil appeals. It has refused to concur with the conflicting opinion and has overruled a motion to certify the question.

The other authorities cited in the opinion of the majority have no application to this case. They deal with the extent of the authority of a court to which a cause has been taken by appeal to consider questions in the cause. The appeal takes the entire cause to the appellate court. Here the cause pending in the Court of Civil Appeals has not been brought to this Court; it remains in that Court. This case is an original proceeding distinct from that cause. As has been shown, the original jurisdiction of this Court is narrowly defined. It exists in a case like this only when there is conflict in the opinion of the court of civil appeals on a question of law with an opinion of the Supreme Court or an opinion of one of the courts of civil appeals, and it extends only to compelling the certification of the very question involved in the conflict and the determination of the very question.

The majority opinion speaks of trying a case piecemeal. Whenever a question is certified to this Court or compelled to be certified, there is, it may be said, a piecemeal trial. The whole case cannot be certified. Kelley-Goodfellow Shoe Co. v. Liberty Insurance Co., 87 Tex. 112, 26 S.W. 1063. It is to be remembered that the purpose of the statutes which give jurisdiction to this Court in this case is to settle the particular conflict and thus prevent as far as possible conflicts arising from decisions of the courts of civil appeals. McCurdy Daniels v. Conner,95 Tex. 246, 250-251, 66 S.W. 664. Neither appellate jurisdiction nor any other general jurisdiction is given to this Court in this kind of case. Even when cases are certified under Article 1851 "the Supreme Court has no jurisdiction to decide" a question which has not been certified, even though it relates to jurisdiction of the Court of Civil Appeals. Tunstill v. Scott,138 Tex. 425, 434, 160 S.W.2d 65.

Possibly it may be more expeditious for this Court to advise the Court of Civil Appeals how it should decide the question of venue under the contract of March 24, 1944; but to do so is to exercise power without authority to exercise it.

Opinion delivered November 24, 1948.

Associate Justices, Hart and Garwood, joins in this dissent.