G.G. Nesbitt v. F.H. Conner

Mr. Judge GERMAN delivered the opinion of the Commission of Appeals, Section A. Relators, G. G. Nesbitt and A. L. Camp, filed petition for mandamus in the Supreme Court January 11, 1922, to require the Honorable Court of Civil Appeals for the Second Supreme Judicial District to certify certain questions of law to the Supreme Court in the case of Smith v. Nesbitt et al. A full statement of all questions involved will be found in the reported case, 235 S. W. 1104-1108. There were two main questions disposed of on appeal: One of limitations and the other of res adjudieata. At the time petition for mandamus was filed counsel for relators were under the impression .that no opinion had been written on their motion for rehearing in the Court of Civil Appeals, and it is so alleged in the petition. On the assumption that the Court of Civil Appeals had considered their plea of res adjudieata on its merits and had decided the questions relating thereto contrary to their contentions, without written opinion, they set out in their petition allegations of a conflict between the decision of the court in this case on the questions of res adjudieata and the decisions of other Courts of Civil Appeals in numerous cases. However, the Court of Civil Appeals did prepare and file written opinion on relators’ motion for rehearing (235 S: W- 1107-1108), in which it is held that the plea was insufficient, and same was not considered on its merits. The petition for mandamus does not allege *34 that this opinion is in conflict with any other decision. This being true, there are no grounds alleged or shown in the petition which 'Would authorize a mandamus.- However erroneous the judgment o£ the Court of Civil Appeals on the question of the sufficiency of the plea might have been, unless there was a conflict with some other decision in this particular, it would furnish no reason for requiring " the question to be certified. We recommend that the petition for mandamus be denied. ON MOTION-FOR REHEARING. In this case relators have filed motion for rehearing and motion for leave to file amended petition. This amended petition sets up, in effect, a new cause of action. It appears that the opinion of the Court of Civil Appeals was rendered in this case June 18, 1921, and motion for rehearing was overruled October 22, 1921. The original petition for mandamus as pointed out in our opinion failed to state a cause of action. Even if the amendment set up a good cause of action, we think it comes entirety too late and should not be allowed. The motion for rehearing on the original petition is merely formal. It is our recommendation that leave to file the amended petition be denied, and that the motion for rehearing be overruled. The Supreme Court refused the writ of mandamus in accordance with the recommendation of the Commission.