Mosler Safe Co. v. Atascosa County , 1916 Tex. App. LEXIS 266 ( 1916 )

On Motion for Rehearing.

[2] The judgments in favor of the Gordon-Jones Construction Company and the Equitable Surety Company could have been rendered, and apparently were rendered, upon the theory that, as the county had been adjudged not to be indebted to the safe company, it could not maintain any cross-action against said two parties. This being the case, we conclude that it would be unjust to let the judgment in favor of said two parties stand. The power to give relief to appellant by changing the judgment carries with it the power and the necessity to make such other changes therein as justice to the other parties demands. Thompson v. Kelley, 100 Tex. 539, 101 S. W. 1074; Reeves v. McCracken, 103 Tex. 416, 128 S. W. 895; Tynberg v. Cohen, 76 Tex. 409, 13 S. W. 315.

The judgment heretofore entered by this court is set aside, and judgment entered reversing the judgment of the district court in its entirety, and awarding the Mosler Safe Company a recovery of its debt as indicated in our former opinion and judgment, but providing that the cause, as between Atas-cosa county and the Gordon-Jones Construction Company and the Equitable Surety Company, be remanded for another trial. All costs of this appeal will be taxed against Atascosa county.