Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 422
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422 FRANKLAD v. CASSADAY. [Tyler Term,
Opinion of the court.
White, Smith & Baldwin v. Downs, 40 Tex., 225. These cases show,
as the chief justice admits, that the rule has not been deemed inflexible
in this state; he proceeds to express his individual opinion,
predicated upon a considerable array of authorities from many of
the states, " that the rule itself is well established, is founded on the
policy of preventing useless litigation, and that it should not be departed
from even for the purpose of reinvestigating the correctness
of the former decision, save for urgent reasons."
The case of The State v. Wygall, unreported (see 2 Tex. Law Review,
138), being before the supreme court on a second appeal, Chief
Justice Willie said: "It is only in exceptional cases that we would
overrule decisions previously made in the same cause on a former
appeal."
The rule thus suggested by Chief Justice Willie, according in its
spirit as it does with that which Chief Justice Gould presents as
being the proper one, may well be applied in this case.
What is it contained in this record that characterizes the merits
of the appeal as " exceptional," so as to induce a departure from the
ordinary operation of the rule? What " urgent reasons" are suggested
in the elaborate and able brief of counsel for the plaintiff in
error, or by the record, to justify such departure for the purpose of
reinvestigating the correctness of the former decision? We are unable
to perceive either the one or the other.
It is not maintained that the opinion of the supreme court has
applied any legal proposition contained in it that is incorrect, or
that is even doubtful, or that is even questionable, as abstract law.
Its conclusiveness, if questionable, must therefore depend upon the
application of the law there propounded to the facts of the case.
The gist of the argument involved in the numerous assignments of
error, and the still more numerous propositions under them, is that
the evidence shows that .the construction given in the opinion of
Judge Quinan (55 Tex.) to such a state of facts as are shown in the
statement of facts in this case is unwarranted in law; that the opinion
would be applicable to a different state of facts than are here
,shown, but not to these. If such is not the logical view of the argument
of the brief, then the alternative proposition must be that
the plaintiff in error maintains that the decision of the supreme
court, if based upon the same facts substantially as are now presented
to it, was erroneous in respect to some fact or facts found or
determined by the court as the basis of its opinion, or that the law
as propounded was not good law, and that the decision ought therefore
to be corrected.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/444/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .