Penn v. Briscoe County

TAYLOR, J. This action is in the form of trespass to try title to the S. W. ¼ of survey No. 96, block B-l, B. S. & F. certificate 1/770, in Briscoe county. The real purpose of the suit, however, is to determine the true location of the south boundary line of the plaintiff’s one-fourth of the section. 162 S. W. 916. It is a case of boundary purely, and comes under the rule stated in Cox v. Finks, 91 Tex. 318, 43 S. W. 1. The writ was sought on the ground that the Court of Civil Appeals erroneously declared the substantive law of the case. The writ was granted in April, 1914. In November following the Supreme Court decided the case of Cole v. Cobolini, 106 Tex. 472, 170 S. W. 1036, holding that the act of March 28, 1913 (Laws 33d Leg. p. 107), amending article 1521, Revised Statutes 1911, defining the jurisdiction over the Court of Civil Appeals where such court has erroneously declared “the substantive law of the case” (paragraph 6), did not repeal article 1591, Revised Statutes 1911, which made judgments of the Courts of Civil Appeals final in certain cases, including eases of boundary. The court, in concluding the opinion, stated that during the prior term, in applying the act of 1913, the court acted under the view that its effect was to confer upon the Supreme Court jurisdiction over questions of substantive law in cases made final in the Court of Civil Appeals by the terms of article 1591, and added that in a few cases writs of error had been granted in such cases, which, under the ruling announced, would be dismissed. This is doubtless one of the cases referred to. We are of opinion that the Supreme Court has no jurisdiction of the case, and recommend its dismissal. PHILLIPS, C. J. Case dismissed for want of jurisdiction, as recommended by the Commission. Judgment will be so entered.