Opinion
No. A-3155.
May 23, 1951. Rehearing Denied June 20, 1951.
Kelley Ryan and McGregor Sewell, all of Houston, for petitioner.
Joe G. Davis and John Phillips, Huntsville, for respondent.
The Court of Civil Appeals modified the judgment of the trial court by reducing the amount of attorney's fees from $450.00 to $20.00. 238 S.W.2d 213. That is a material reduction in the amount of recovery in the trial court. It, nevertheless, taxed the costs of appeal against appellant, without entering of record any cause therefor. Such ruling is in conflict with Campbell Cleaning Dye Works v. Porter, Tex.Civ.App., 183 S.W.2d 253. Under Rule of Civil Procedure No. 483 this court may, in its discretion, without the necessity of granting a writ of error and hearing the case, reverse and remand the case on application for writ of error where the opinion of the Court of Civil Appeals is in conflict with a previous opinion of the Supreme Court. While the opinion in Campbell, etc. v. Porter, supra, was by the Court of Civil Appeals, this court made that opinion its own, in effect, by refusing, without qualification, an application for writ of error therein. It therefore appears that the opinion of the Court of Civil Appeals in the particular above named is in conflict with a prior opinion of this court. No other assignment in the application for writ of error is sustained. Accordingly it is ordered that the case be remanded to the Court of Civil Appeals to tax the costs of appeal in conformity with Rule 139; provided, however, that if cause exists for not doing so, that such cause be stated on the record as provided in Rule 141.