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Campbell, Receiver v. Wiggins, Tax Collector

T. M. Campbell, Receiver v. Ed. B. Wiggins, Tax Collector.

Campbell v. Wiggins, 22 S.W. 5 (Tex. 1893)
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Court
Texas Supreme Court · State Highest Courts
Decided
April 10, 1893
Docket
No. 44.
Judges
Stayton
Citations
22 S.W. 585 Tex. 4511893 Tex. LEXIS 209
Cited by 9
Headnotes
1. Writ of Error—Only one Can Issue in a Case.—After a case has been before the Supreme Court on certificate of dissent from a Court of Civil Appeals, another writ of error bringing up the entire case will not be granted. 2. Same — Practice on Dissent in Court of Civil Appeals.—The law which provides for certificate of questions on which there may be dissent furnishes simply a means whereby parties may bring questions of law before the Supreme Court otherwise than by writ of error; but no litigant is compelled thus to bring before this court any question. A party not only may but ought to refrain from bringing to this court through this means questions of law on which is dissent, if there be other questions vital to his rights which he can not have thus submitted to the Supreme Court. 3. Same—Case Certified by Court on its Own Motion.—If a Court of Civil Appeals, on its own motion, should certify a question, it is clear that a litigant should not be thus cut off from the right to prosecute a writ of error in the case.
Summary
Application for Writ of Error to Court of Civil Appeals, First District, in a case on appeal from District Court of Smith County. This was a suit brought in District Court of Smith County by T. M. Campbell, receiver, etc., of the International & Great Northern Railway Company, against Ed. B. Wiggins, tax collector, to enjoin the collection of state and county taxes upon certain money accruing from the operation of said railway, and deposited by the said receiver in the bank of Bonner & Bonner, at Tyler, Texas. It was claimed that said money or credits was exempt from taxation. The injunction was refused in the District Court, and on appeal the Court of Civil Appeals, First District, affirmed the judgment of the District Court. To the decision of the majority one of the judges filed his dissent, as to whether “ the exemption of the International & Great'North-em Railway Company and its successors by name, exempted from taxation the money in question, the dissenting judge being of opinion that it was so exempt by reason of the language of section 1 of the Act of 1875.” This question by proper certificate, under sections 32 and 33 of the Act of April 13, 1892, organizing Courts of Civil Appeals, was certified by said Court of Civil Appeals on January 26, 1893. Thereafter, on February 27, 1893, the Supreme Court delivered its opinion, affirming the judgment of the Court of Civil Appeals and that of the trial court upon the question so submitted. The transcript of the case, which had been brought up to the Supreme Court, was ordered to be returned to the Court of Civil Appeals; and on March 23, 1893, after the expiration of the period prescribed for motion for rehearing, the clerk of the Supreme Court notified the said Court of Civil Appeals of such decision, and returned the transcript. Subsequently, on March 25, 1893, Campbell filed an application for a writ of error, complaining of alleged errors other than the questions which jiad been certified to and decided by the Supreme Court. The errors assigned on appeal are as follows: “ 1. The court erred in dissolving the inj unction, because under the special statutes set out in full in plaintiff’s trial amendment, the property or money upon which this tax is levied is exempt from taxation. “ 2. The court erred in dismissing plaintiff’s petition, but should have held it over for hearing on its merits, because said petition was sworn to, and showed that plaintiff was not liable for near all the tax claimed by defendant and stated in the judgment, but for a much less amount only, if said property was not protected by said special exemption law; and defendant’s answer not being sworn to, the court should have heard proof of the amount of taxes actually due, as that was an issue made in the case by the pleadings. “3. The court erred in rendering judgment against plaintiff for any amount whatever, for there was no evidence offered by defendant to sustain said judgment; and the court erred in ordering plaintiff to pay over said money to defendant, because defendant offered no proof to show he was entitled to such an order, and the same is without evidence to sustain it.”

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Stayton

STAYTON, Chief Justice.

Applicant seeks a writ of error to have revised a judgment of affirmance rendered by the Court of Civil Appeals at Galveston, on December 15, 1892.

*454 One of the judges of that court having dissented from the opinion of the majority upon one question, on motion of applicant the matter was certified to this court for determination, and on February 27 the judgment of the Court of Civil Appeals was by this court affirmed, and on the 4th of the present month the application now before us was filed.

The applicant now seeks a writ of error for the purpose of having revised a ruling of the Court of Civil Appeals on which all the judges concurred, which, under the ruling heretofore made, could not be revised on the certificate of dissent.

The question arises whether, after having come before this court on certificate of dissent, it would be proper now to grant a writ of error to bring up the entire case.

The law which authorizes the bringing of questions before this court upon certificate of dissent, contemplated that a judgment shall be rendered in the Court of Civil Appeals on the opinion of the majority of the judges, but after this gives to the court the power, on its own motion, or upon motion of a party to the cause, to certify the matter on which the judges have differed for the decision of this court, and upon that being made, the judgment of the Court of Civil Appeals must be made to conform to that decision.

When motion was made by applicant to have question on which there was dissent certified, there was a judgment to sustain an application for writ of error, which would have been granted by this court if, on inspection of application, it was made apparent that error had probably been committed in reference to a material matter, and thus all questions with the decision of which applicant was dissatisfied might have been brought before this court.

The laws which provide for certification of questions on which there may be dissent, furnish simply a means whereby parties may bring questions of law before this court otherwise than by writ of error; but no litigant is compelled thus to bring before this court any question, and a party not only may but ought to refrain from bringing before this court, through this means, one or more questions of law if there be other questions vital to his right which he can not have thus revised.

If a Court of Civil Appeals, on its own motion, should certify a question, it is clear that a litigant should not be thus cut off from right to prosecute a writ of error; for a contrary rule would place it within the power of the court to deprive a litigant of the right conferred on all litigants, under the restrictions imposed by law, to bring before this court for review any question of law decided by or necessary to the decision of a case determined by a Court of Civil Appeals. The law does not contemplate that, this court shall hear and determine in piecemeal the many questions of law that may be decided or involved in a cause, and that on some a decision may be made on certificate of dissent, and after this on *455 writ of error all other questions of law may be heard and decided; but it does give to the litigant the right to use either remedy in a cause in which both are applicable, and he must determine for himself whether the question on which there is dissent is the only question vital to his right decided against him; and when he so determines, must be held to his election, and to have waived all questions other than such as he may have revised in the manner selected.

The judgment of the Court of Civil Appeals was final in character; from it a writ of error might be granted on which all questions of law could have been revised; but applicant saw proper to pursue another remedy, more restricted in its operation, and he must be held thereby to have waived all right now to have writ of error, and to have waived all questions that could not be revised under the remedy selected.

The laws look to the speedy termination of litigation, and do not permit delay that would necessarily result if, from a judgment final in character, two or more effective appellate proceedings, the one following the decision invoked in the other, might be used for the purpose of revising ■errors that could have been reached by a single remedy.

The application for writ of error will be overruled.

Application overruled.

Delivered April 10, 1893.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 9 cases

View all citing references →
1896: 11922: 11924: 11929: 11934: 21941: 11955: 218962026peak 1934 · 2

Relies on it most ⓘ

  1. Dorenfield v. State of Texas73 S.W.2d 83 (Tex. 1934)
  2. Whelan v. State282 S.W.2d 378 (Tex. 1955)
  3. Ward v. Scarborough236 S.W. 441 (Tex. Comm'n App. 1922)
  4. Halbrook v. Quinn286 S.W. 954 (Tex. App. 1924)
  5. Lindsley v. Lindsley152 S.W.2d 415 (Tex. App. 1941)
  6. First National Bank of Fort Worth v. Kelley278 S.W.2d 350 (Tex. App. 1955)

Most recent

  1. Whelan v. State282 S.W.2d 378 (Tex. 1955)
  2. First National Bank of Fort Worth v. Kelley278 S.W.2d 350 (Tex. App. 1955)
  3. Lindsley v. Lindsley152 S.W.2d 415 (Tex. App. 1941)
  4. Dorenfield v. State of Texas73 S.W.2d 83 (Tex. 1934)
  5. R. R. Stolley Corp. of Austin v. Quebedeaux70 S.W.2d 266 (Tex. App. 1934)
  6. King v. State16 S.W.2d 1072 (Tex. Crim. App. 1929)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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