Dahlberg v. Holden ( 1951 )

ON REHEARING.

Chief Justice Hickman

delivered the opinion of the Court.

We have concluded that our original judgment should be modified in one particular. The point which we sustain was not stressed on original submission, and we did not give it that careful consideration which we have given it on motion for rehearing. It is now our conclusion that the Court of Civil Appeals, instead of rendering judgment in favor of the Holdens for the title and possession of the entire tract, should have rendered judgment that they recover an undivided one-third interest in the entire tract, and that as to the remaining two-thirds interest the cause be remanded to the trial court for another trial. The issues are clearly severable. The question is not one of reversing and remanding an errorless judgment. Both the Court of Civil Appeals and this court have decided that there was error in the judgment of the trial court. Having reversed the trial court’s judgment, the question of whether to render or remand is one regarding which appellate courts are given broad discretion. T. R. C. P. Nos. 434 and 505.

From a consideration of the record as a whole, we are not satisfied that the case has been fully developed with respect to the title of the two-thirds interest. If, in fact, petitioners have a claim of title to any part of that interest which is independent of the void deed but failed to develop their claim upon the trial, then, in our opinion, justice demands that they be afforded an opportunity to do so. Langford v. Smith, 128 Texas 373, 99 S. W. 2d 593; Williams v. Safety Casualty Co., 129 Texas 184, 102 S. W. 2d 178; Turner v. The Texas Company, 138 Texas 380, 159 S. W. 2d 112; Hall v. O. C. Whitaker Co., 143 Texas 397, 185 S. W. 2d 720.

It is therefore ordered that the judgment heretofore rendered in this cause be modified as follows:

The judgment of the Court of Civil Appeals in so far as it awarded title to respondents to an undivided one-third interest in the land in suit is affirmed; in so far as it rendered judgment for respondents for the remaining interest in the land, the judgment is reversed, and the cause is remanded to the trial court for a new trial not inconsistent with our opinion upon that phase of the case only.

Except as indicated above, the motions for rehearing of both parties are overruled.

Opinion delivered April 4, 1951.

Second motion for rehearing overruled May 2, 1951.