announcement rule in Texas

1925R. 407, 247 S. W. 518 , to make an announcement of the principle controlling our attitude towards them as follows: “* * * Second motions for rehearing will not be considered by this court, nor leave granted to file same, unless there be a sufficient showing in such application of the fact that in its original opinion, or opinion upon the motion for rehearing, the court has omitted to consider some matter, which, from the statement thereof in such ap^ plication, is made to appear to this court so vital to the proper disposition of the case as to lead us to conclude that we erred in failing to c

1924Rep., 407 , 247 S. W. 518 to make an announcement of the principle controlling our attitude towards them as follows: “* * * Second motions for rehearing will not be considered by this court, nor leave granted to file same, unless there be a sufficient *40 •showing in such application of the fact that in its original opinion, or opinion upon the motion for rehearing the court has omitted to consider some matter, which, from the statement thereof in such application, is made to appear to this court so vital to the proper disposition of the case as to lead us to conclude that we erred in failing

1921Quoting further from Yardeman v. Edwards, supra: “The application, whether made before or after the term, is addressed to the same court, having cognizance of both legal and equitable causes; and there can be no reason why it should not be governed by precisely the same principles in the one case as the other, only with this qualification, that, as the rule of law requires that the application be made during the term at which the verdict is rendered, if this be not done, the party must show an equitable excuse to entitle him to a hearing of his application after the term.” The announcement of

1919The application, whether made before or after the term, is addressed to the same court, having cognizance of both legal and equitable causes; and there can be no reason why it should not be governed by precisely the same principles' in the one case as the other; only with this qualification, that as the rule of law requires that the application be made during the term at which the verdict is rendered, if this be not done, the party must show an equitable excuse to entitle him to a hearing of his application after the term.” And the announcement of that rule was quoted with approval in Bryorly

1939An announcement of this rule is found in Smith v. Guerre, Tex.Civ.App., 175 S.W. 1093 ; Stell v. Salters, Tex.Civ.App., 83 S.W.2d 742 ; Colvard v. Goodwin, Tex.Civ.App., 24 S.W.2d 786 ; 24 TexJur., par. 45, p. 430, and authorities there cited.

1939An announcement of this rule is found in Smith v. Guerre, Tex.Civ.App., 175 S.W. 1093 ; Stell v. Salters, Tex.Civ.App., 83 S.W.2d 742 ; Colvard v. Goodwin, Tex.Civ.App., 24 S.W.2d 786 ; 24 TexJur., par. 45, p. 430, and authorities there cited.

1939An announcement of this rule is found in Smith v. Guerre, Tex.Civ.App., 175 S.W. 1093 ; Stell v. Salters, Tex.Civ.App., 83 S.W.2d 742 ; Colvard v. Goodwin, Tex.Civ.App., 24 S.W.2d 786 ; 24 TexJur., par. 45, p. 430, and authorities there cited.

1936We quote: “ ‘A clause in a statute purporting to repeal other statutes is subject to the same rule of interpretation as other enactments, and the intent must prevail over literal interpretation.’ An absolute repeal may be controlled as a qualified or partial repeal, where other parts of the statute show such to have been the real intent.” Without approving all that is said in State v. Moorhouse (Supreme Court of North Dakota), 67 N. W., 140 , and Smith v. People, 47 N. Y., 330 , it is observed that said cases support the announcement of the rule as expressed in the above quotation.

1936We quote: “ ‘A clause in a statute purporting to repeal other statutes is subject to the same rule of interpretation as other enactments, and the intent must prevail over literal interpretation.’ An absolute repeal may be controlled as a qualified or partial repeal, where other parts of the statute show such to have been the real intent.” Without approving all that is said in State v. Moorhouse (Supreme Court of North Dakota), 67 N. W., 140 , and Smith v. People, 47 N. Y., 330 , it is observed that said cases support the announcement of the rule as expressed in the above quotation.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1935Christie v. United States, 237 U.S. 234 , 35 S.Ct. 565 , 59 L.Ed. 933 ; Hollerbach v. United States, 233 U.S. 165 , 34 S.Ct. 553 , 58 L.Ed. 898 ; McGovern v. City of New York, 202 App.Div. 317 , 195 N.Y.S. 925 ; Maney v. Oklahoma City, 150 Okla. 77 , 300 P. 642 , and the other cases cited in 76 A.L.R. page 269.

1923Baugh v. Railway Co., 80 Tex. 56 , 15 S.W. 687 ; Railway Co. v. Anderson, 79 Tex. 427 , 15 S.W. 484 , 23 Am.St.Rep. 350 ." This announcement of the rule by our Supreme Court accords with the rule as stated in the quotation hereinbefore made from 20 R.C.L., and, while it is true that the *Page 570 nuisance under consideration was of a character that it was possible to abate, yet under the very terms of the title, by virtue of which the city exercised its right, it is bound to maintain the nuisance, and at least apparently intended to so continue the use.

1923Baugh v. Railway Co., 80 Tex. 56 , 15 S.W. 687 ; Railway Co. v. Anderson, 79 Tex. 427 , 15 S.W. 484 , 23 Am.St.Rep. 350 ." This announcement of the rule by our Supreme Court accords with the rule as stated in the quotation hereinbefore made from 20 R.C.L., and, while it is true that the *Page 570 nuisance under consideration was of a character that it was possible to abate, yet under the very terms of the title, by virtue of which the city exercised its right, it is bound to maintain the nuisance, and at least apparently intended to so continue the use.

1923Baugh v. Railway Co., 80 Tex. 56 , 15 S.W. 687 ; Railway Co. v. Anderson, 79 Tex. 427 , 15 S.W. 484 , 23 Am.St.Rep. 350 ." This announcement of the rule by our Supreme Court accords with the rule as stated in the quotation hereinbefore made from 20 R.C.L., and, while it is true that the *Page 570 nuisance under consideration was of a character that it was possible to abate, yet under the very terms of the title, by virtue of which the city exercised its right, it is bound to maintain the nuisance, and at least apparently intended to so continue the use.

1921Quoting further from Yardeman v. Edwards, supra: “The application, whether made before or after the term, is addressed to the same court, having cognizance of both legal and equitable causes; and there can be no reason why it should not be governed by precisely the same principles in the one case as the other, only with this qualification, that, as the rule of law requires that the application be made during the term at which the verdict is rendered, if this be not done, the party must show an equitable excuse to entitle him to a hearing of his application after the term.” The announcement of

1912Groesbeck v. Groesbeck, 78 Tex. 664 [ 14 S. W. 792 ], and •authorities cited.” Of course, the Supreme •Court was only applying the language to the facts in that suit, but we think the language, .as the announcement of a principle, is applicable here.

1912Groesbeck v. Groesbeck, 78 Tex. 664 [ 14 S. W. 792 ], and •authorities cited.” Of course, the Supreme •Court was only applying the language to the facts in that suit, but we think the language, .as the announcement of a principle, is applicable here.