Wolf v. Sahm , 1911 Tex. App. LEXIS 100 ( 1911 )

As the judgment of the Court of Civil Appeals of the third district affirming the action of the district court of Travis county in transferring the case to the district court of Menard county for trial and adjudging all costs against appellant, Charles Wolf, and the action of the Supreme Court in denying his application for a writ of error from said judgment, must be taken by us as a final and conclusive adjudication of the legality and validity of such action of said district court of Travis county in so transferring the case and adjudging such costs, we overrule appellant's first second, and third assignments, which are in substance that the district court of Menard county erred in refusing to strike the case from the docket at the costs of appellees because the judgment of the district court of Travis county in vacating the judgment of January 2, 1910, and transferring the cause to the district court of Menard county for trial was void. See Wolf v. Sahm, 120 S.W. 1114; Id.,121 S.W. 561.

It is not for us to criticise the opinions delivered in this case, but to observe them and see that they are followed. It is needless to remark that the effect of granting a new trial is to vacate the judgment rendered on the prior one, or that an order of a court directing a case which has been once tried to be transferred to another court of competent jurisdiction for trial conclusively involves the fact that a new trial has been granted by the court making such order. Else, why transfer the cause to another court? As to whether the order transferring the case and assessing the costs against appellant was interlocutory or final is a matter which does not in this case concern us. It was treated as a judgment final by the Court of Civil Appeals, otherwise it would not have entertained jurisdiction of appellant's appeal, and was so regarded by the Supreme Court, else it would not have taken jurisdiction of appellant's application for a writ of error, as is shown it did do by its denying the writ. See Act of April 18, 1907 (Gen. Laws 1907, p. 248). It would have been equally useless to have affirmed the action of the trial court in transferring the case to Menard county for trial, if the evident action of the district court of Travis county in granting defendants (appellees) a new trial were for any reason ineffective and void.

Appellant's assignments of error from the fourth to the ninth inclusive relate exclusively to proceedings in the district court of Travis county leading up to the transfer of the case from that court to the district court of Menard county which can in no way affect the trial of the case in the latter court, which should be on its merits, as though it had originated therein, and defendants (appellees) appeared and answered, just as any other case of trespass to try title should be. Therefore such assignments need not be further noticed.

While there was no error in the court's refusing to strike the case from the docket on plaintiff's (appellant's) motion, it was error for it to dismiss the suit; no ground or reason appearing in the record therefor. While such error is not assigned, we deem it fundamental and of such character as requires the reversal of the judgment.

It is needless to say that if another case between the same parties, involving the same subject-matter as this one, is pending in the district court of Menard county, a final judgment rendered in one upon a trial upon its merits will, in effect, likewise dispose of the other, and it, if not consolidated as it should be, can then be dismissed at the cost of the losing party.

The judgment dismissing the case is reversed, and the cause remanded for trial on its merits, and the costs of this appeal are assessed against the appellees.

Reversed and remanded.