Ogle v. Logue , 404 S.W.2d 339 ( 1966 )

WILSON, Justice.

Petitioners ask leave to file a petition for writ of mandamus to require the district judge to render judgment sustaining their motion for summary judgment. The latter motion asserted that under our decision reported Thornhill v. Elskes, Tex.Civ.App., 381 S.W.2d 99 there was no genuine issue of material fact under Rule 166-A, Texas Rules of Civil Procedure.

While the Court of Civil Appeals may require the district court to proceed to trial and judgment under Art. 1824, Vernon’s Ann.Civ.St., it may not ordinarily prescribe the judgment to be rendered, particularly where the judgment rendered may be reviewed by appeal. Aycock v. Clark, 94 Tex. 375, 65 S.W. 665; Ben C. Jones & Co. v„ Wheeler, 121 Tex. 128, 45 S.W.2d 957; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764; Crofts v. Court of Civil Appeals, Tex. 1962, 362 S.W.2d 101. The motion for leave to file is overruled.