Fidelity Casualty Co. v. Allibone , 90 Tex. 660 ( 1897 )

Since the filing of the application for the writ of error in this case counsel for the appellee, desiring as he says to eliminate the federal question involved, has offered to remit in this court so much of the recovery as was given for attorneys' fees and damages under the statute. While, upon presentation of an application, we have jurisdiction to determine whether or not the writ of error should be granted, we have no jurisdiction over the case, until the writ be granted. Hence, at this stage of the proceedings we have no power to accept a remittitur, entered with a view to eliminate error in the judgment. Taking the case as presented upon the application, without reference to the attempted remittitur, we find no error in the proceedings or judgment. As to the constitutional question we agree with the Court of Civil Appeals in holding that it is distinguishable from that passed upon by the Supreme Court of the United States in Railway Company v. Ellis, U.S. Sup.Ct. advance sheets No. 7, p. 284.

If appellee still desires to eliminate the federal question by filing a remittitur, she must remit in the Court of Civil Appeals.

The application for the writ of error is refused.