Central Surety & Insurance Corp. v. First National Bank of Fort Worth ( 1963 )

ON MOTION FOR REHEARING

The judgment of the trial court having been one overruling the insurance company’s plea of privilege, when, if we are correct, it should have been a judgment which sustained the plea of privilege, it necessarily follows under the decision of Jackson v. Hall, 1948, 147 Tex. 245, 214 S.W.2d 458, that the case should be treated by us as having not been fully developed and tried under a wrong theory by the court below as well as by the bank’s attorney, for “otherwise the trial court would have transferred the cause”.

The Jackson v. Hall case was one in which the plaintiffs who filed a controverting affidavit, predicated the same upon that portion of Subdivision 23 of V.A.T.S. 1995 that the bank predicated (in part) its controverting affidavit in the instant case, and where on the trial the said plaintiffs wholly failed to show either that they resided in the county of the suit or that a cause of action or part thereof arose in said county. We feel that we are controlled by the decision in that case despite our concern with the theory of liability advanced by the bank’s pleadings.

Accordingly we have concluded that it would be proper to remand the cause to the trial court for another hearing rather than to order the same transferred.

It is accordingly so decreed. In so far as our original opinion renders our judgment it is withdrawn and our order of remand substituted therefor.

ON SECOND MOTION FOR REHEARING

On the former rehearing we directed a remand of the case for further development, if within the power of the bank. Central Surety has in turn filed its motion for rehearing in which it levels a strenuous attack upon our interpretation of Jackson v. Hall, 1948, 147 Tex. 245, 214 S.W.2d 458, and insists that our original judgment of reversal and rendition in its favor should be reinstated.

It is to be noted that the Supreme Court’s action in Jackson v. Hall was taken pursuant to its having granted leave to file a petition for mandamus against the Justices of the Court of Civil Appeals to compel a judgment of remand upon reversal of a trial court’s judgment overruling a plea of privilege, rather than the rendition by which the case was ordered transferred.

Our interpretation of the holding in Jackson v. Hall is that as applied to appeals in general, and those from orders overruling pleas of privilege in particular, any proper judgment of an appellate court which reverses the judgment of the trial court should be one which incorporates therein an order remanding the cause to the trial court, rather than one of rendition, when the reversal is occasioned by a lack of evidence in support of the judgment of the trial court, — unless it clearly appears that the case was fully developed, i. e., unless it clearly appears that there was no evidence available to be introduced in the trial court which would have supplied such “lack”.

Motion for rehearing is overruled. No additional motion for rehearing will be entertained.