The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-10-27

cspt and copy Of motion BY the o.f,esr !,
snaii be his duty TO deliver the conv ~ shs
uVtion 10 the person named IN s.id ~
cepL, IL found IN. his county. ana n ra,,,'su
sara precept to the court. by mail s,s.sa..
,nereon at what time and to wh,m no das
nvered the copy OF the motion. or lbst
tne party named In the preceps il r,oi "a n,
'ound IN nj, county. e. the case may BE-.
Art. 49, Service Of s,ich motion on anv
one Of several parties or their at,or,,'sys
to cause shall be sufficient service nm
all. 's'''pe On
Art. WI. At any time, after five davs
iicm the return OF such precert served. n
shall be lawful for said supreme court 70
hear and determine such motion for re- :
hearing and not sooner.
II II mad been the purpose OF the lcxIsis-
lure to make every ruling OF the suprcmc
court subject TO review by motion for a
.enearlng. the Language could hardly have
been more comprehensive, yst wnsn ~.
look to all the provisions relating 1, ,h,t
procedure and tc the reason ana spirit
OF the enactment, we are constrained IN
hold, 1t was not the purpose 4, rly. n
party WHOSE application for writ OF error
has been refused the right to have a rs
eonsi liberation OF the matter by simply
Hing motion for that purpose. Tsat
some limitation Is to be- placed upoa the
terms "a rebearins CT ANY matter datermin-
ed by said court" is obvious. A motion for I,
rehsaring itself. when ether grantei
or overrilei is a map;er deter
mined by the court. SO that II the mstn-
ing OF the words are not to be restrictsA,
the procedure might be continued inicfi
nitely. 1t is absurd to attribute a purpose
10 the legislature to give such right.
Again, II the words are to be taken IN
their broad literal sense, every motion
made during the progress OF the cause
would be subject 20 a review and under tn :
provisions OF the last four articles quoted
TO consequent delay of several weeks.
Clearly this was not intended. nor has 1t
ever b;en the practice in this court.
Besides the provisions OF articles 9Ts
$40, $50 and ISL above quoted show that
article 9T7 was not intended TO apply to the
action of the court upon an application for
writ of error. The latter proceeding 1:
purely ex paras. The defendant In the APP
plioation is neither entitled to notice nor
TO be heard upon the question whether the
application shall be granted or refused. II
granted the case is set down for submits
I'm and he Is notified of the fact and OF
the day Of submission. 1t is unreasonable
to presume that 1t was the purpose OF the
legislature that the defendant in an appli-
cation should have notice of a motion for a
rehearing Of the application when he is not
entitled to notice of the filirg OF the motion
itself. The two are obviously Inconsistent
And yet the language Of article a1S is JUS,
as broad as article 977. 1t makes 10 ex-
ception. Whenever motion is filed no.
,ice must be given. 1t Ia clear either ar
ticle OF was not intended TO embrace the
determination of an application for a writ
of error, or that article 97S was not in
tended to apply to every motion.
Again, IL the statute gives the right to
move for a rehea,ing upon the refusal OF a
petition for writ OF error, II clearly gives
the right when one is granted. That there
Is no reason for such a motion in the lat
ter case appears by the fact that when an
application is granted the defendant IN
error is given notice and has the RICH to
appear and present his case by brief and
oral argument.
When, as Is the usual practice in all OF
cur appellate courts, a case Is disposed OF Ia
a wl&tten opinion. a motion for rehearing
is a serviceable proceeding. Counsel,
Knowing the grounds upon which the case
has been decided, may be able TO point to
some mistake into which the court has
fallen as to the contents of the record OF
some error of law But it Is rare that any
timing is written in the supreme court upon
refusing n writ OF crror-anI then only 10
state in the briefest terms the grounds
upon which the court has acted. we fail "a
see the propriety OF asking reheatlne
when the grounds Of the courts decision
are not disclosed by an opinion and When
The party asking il Is in no better position
TO point cut error, after the nat'er mas
been determined, than he was before the
ruling was made. He can urge nothing in
the motion which might not have been and
ought net have been urged in the petition
for the writ OF error.
In framing the act to reorganize the SUI
preme court un-er the amendments to the
judiciary article of the constitution, tne
legislature pursued the method Oh amcnu'
ing certain articles of the revised statutes
and of ,sddlug others, leaving many OF the
previous provisions rejating 10 that court
unchanged. Among the latter are the ar
ticles under consideration. They were orig
inajly raised in 1874, when no such proce-
cure as an application for Wit OF error
as now provided for was knowi TO our law
Since the organize tion of the supreme
court under the recent amendments 10 th'
constitutions, many motions for rehearihp
of applications have been filed and have
heel, acaed on by the court Some have beer
| granted. This was within the power o.
tho court. since II had. control OF it's judg'
meuts unfit the end Of the term. ii mas o.
its own motion set aside oreers refusing
npplicattors long sitter they hsd been en-
tered and granted the writ OF error. Never
theIess, we are clearly OF tho opinion ina
article PIT does not apply to the proceeding
and that an applicant for the writ OF erro
whose application has been refused ma!
not the right to file motion LOT renear'
ing and thereby suspend the action OF IN
clerk in certifying the order OF refusal Il
the court CT civil appe1's
For the reasons given our CONCLUSION
was that the writ OF man.ainWs should IS
sue as prayed for and i was so ordered.
This opinion will be filed and re9orae'
amoug the opinions OF the court.
r. r. Gaines Chief Justice