Simpson v. Yarborough , 176 S.W.2d 761 ( 1943 )

This is a motion filed by appellants, Will Simpson and his wife Roberta Simpson, asking this court to certify to the Supreme Court the question of law involved about which Chief Justice McDonald dissented from the majority opinion. See Simpson et ux. v. Yarborough, Tex. Civ. App.175 S.W.2d 630.

Appellee Yarborough sued in a district court of Henderson County to recover $747.18 principal and interest on two promissory notes alleged to have been executed by the appellants. Defense was made claiming the bar of four years limitation. Appellee recovered in the trial court. Appellants appealed to this court and by a majority opinion the judgment was affirmed. A dissenting opinion was filed, as indicated above. Based on the dissenting opinion and Rule 463, Texas Rules Civil Procedure, appellants have filed this motion.

Under the provisions of Section 1, Article 1728. Vernon's Annotated Civil Texas Statutes, the Supreme Court has jurisdiction to entertain an application for writ of error, lawfully presented, in the case.

In Duval v. Clark (State v. Danciger), 138 Tex. 186, 157 S.W.2d 626, certified questions of law were filed with the Supreme Court by a Court of Civil Appeals, and it was held that the question of law in those cases could lawfully reach the Supreme Court on application for writ of error. For that reason and under the option given the court under Rule 461, Rules Civil Procedure, the court declined to consider the certificate.

Under these authorities and the facts revealed by the record, we overrrule the motion to certify.