Traders & General Ins. Co. v. Ried

BOND, Chief Justice. This cause was attempted to be appealed to this court by writ of error. The case was tried in the lower court on November 10, 1939. The plaintiff in error participated in the trial and, for appeal, filed petition and bond for writ of error on December 28, 1939; but the citation based thereon was not issued or served until January 6, 1940. Defendant in error filed motion to dismiss the attempted appeal on the ground that this court was without jurisdiction perforce of Art. 2249a, Vernon’s Ann.Civ.St. On March 23, 1940, we overruled the motion to dismiss, citing the case of United Employers Casualty Co. v. Skinner, Tex.Civ.App., 141 S.W.2d 955, for authority. Defendant in error has filed a second motion to dismiss, and, on further consideration and review of United Employers v. Skinner, supra, writ of error expressly refused by the Supreme Court, on the strength of that authority, and the case of Edith Copus et al. v. J. H. Chorn et al., 150 S.W.2d 70, on certified question, decided by the Supreme Court on April 2, 1941, not yet [reported in State Report], we have reached the conclusion that we misconstrued the holding in the Skinner case, and, on authority cited, the motion should be sustained. The matter involves a question of law — the jurisdiction of this court; thus our former judgment is not res adjudicata to this second motion. The former judgment is set aside, defendant in error’s second motion to dismiss appeal sustained, and the appeal dismissed.