Appeal and Error — Application for Writ of Error.
Where the application for writ of error fails to show that a motion for rehearing was filed in the Court of Civil Appeals presenting the points on which the writ of error is sought it will be dismissed.
MR. JUDGE HICKMAN delivered the opinion of the Commission of Appeals, Section A.Page 407
The opinion of the Court of Civil Appeals in this case is reported in 76 S.W.2d 803. We made a careful study of the case in the light of the authorities and arguments presented here and concluded that same had been correctly decided by the Court of Civil Appeals. Thereafter we discovered that on or about submission day the defendant in error had filed a written suggestion that the application for writ of error should be dismissed, because it does not state that the rulings complained of were assigned as errors in a motion for rehearing in the Court of Civil Appeals. We have examined the application in the light of this contention and find that the objection is well taken. By a recent decision of this Court in Leonard Brothers v. Newton, 129 Tex. 1, 101 S.W.2d 223, it was held that an application should be dismissed which does not show that a motion for rehearing was filed in the Court of Civil Appeals presenting the points on which the writ is sought. On the authority of that decision and the many cases therein cited, it is ordered that the order granting the application be set aside and the application be dismissed.
Opinion adopted by the Supreme Court May 12, 1937.