The opinion
On Motion for Rehearing
In the prior Cortez appeal this Court held that a de novo appeal, “as in the case of an appeal from the Justice Court to the County Court,” was a pure de novo appeal. Cortez v. State Board of Morticians, Tex.Civ.App., 306 S.W.2d 243 . As such, the appeal vacated former orders. In that case appellant urged no point concerning the constitutionality of a de novo appeal. In the present appeal there was no such point. On this motion for rehearing the problem of a separation of judicial and executive powers is raised for the first time. This is an appeal from a denial of a temporary injunction, and the trial court correctly held that the former Cortez appeal settled the rules by which this case should be tried.
“The majority of the jurisdictions which have passed on the question hold that where a decision is rendered by an intermediate court, and appeal or other remedy is open to the losing party to have that decision reviewed in the court of last resort, if he fails to avail himself thereof, but allows the case to be remanded for further proceedings, and thereafter appeals again to the intermediate court and thence to the court of last resort, the points decided by the intermediate court on the first appeal will be regarded as the law of the case in the court of last resort, and will not there be re-examined.” 3 Am. Jur., Appeal and Error, § 988.
The motion for rehearing is overruled.