Roddy v. Fly

This is an original proceeding upon motion for leave to file a petition for mandamus against the Justices of the Court of Civil Appeals for the Fourth District. An examination of the petition for mandamus shows that the writ is asked for because of conflict. The conflict alleged is with the case of Miles v. Mays,16 S.W. 540.

That case was not decided by the Supreme Court nor by a Court of Civil Appeals. The decision is by the old Court of Appeals created by and under the Constitution of 1876. That court had jurisdiction of all criminal cases and certain civil cases on appeal. Harris' Constitution, p. 373. It functioned until the adoption of the Constitutional Amendment in 1891, which created the Court of Criminal Appeals and provided for Courts of Civil Appeals. Harris' Constitution, pp. 372 to 377.

A Court of Civil Appeals is required to certify questions to this Court only when its decision conflicts with an opinion of the Supreme Court or of another Court of Civil Appeals. R.S., Art. 1623 as amended by Chapter 48 General Laws of the 38th Legislature.

Conflict of opinion between a Court of Civil Appeals and the old Court of Appeals, such as is alleged in the petition before us, is not such a conflict. Gosset v. Citizens Railway Co.,96 Tex. 1, 3.

Leave to file the petition for mandamus is accordingly refused.