Perry Bros. Variety Stores, Inc. v. Layton , 32 S.W.2d 863 ( 1930 )

By judgment entered in this court on the 18th of April, 1928, the judgment of the lower court herein was reversed and judgment rendered in favor of appellant. The opinion supporting this judgment is reported in 7 S.W.2d 190. Appellees duly filed their motion for rehearing, which was in all things overruled on the 6th day of June, 1928. Afterwards on the 20th day of June, 1928, appellees filed their motion asking that we certify to the Supreme Court the controlling questions of law upon which the judgment of rendition was based. This motion was overruled on the 4th day of July, 1928. Afterwards upon orders of the Supreme Court, supported by opinion of the Commission of Appeals, Layton et al. v. Hightower, Chief Justice, et al., 118 Tex. 166, 12 S.W.2d 110, the controlling questions were duly certified to the Supreme Court and duly answered by it through its Commission of Appeals by opinion reported in Perry Bros., Inc., v. Layton, 25 S.W.2d 310. On this opinion the Supreme Court on the 9th day of July, 1930, issued its mandate directing that this court proceed with this case "in accordance with said opinion." On the answer of the Supreme Court to our certified questions herein, it follows that error was committed in reversing the judgment of the lower court in favor of appellees and rendering judgment of rendition in favor of appellant, and that error was committed in overruling appellees' motion for rehearing. It is therefore, ordered, adjudged, and decreed that our judgment overruling appellees' motion for rehearing be and the same is hereby set aside, and that said motion be and is hereby in all things reinstated on our docket, and that said motion be and the same is hereby in all things granted setting aside our former judgment of reversal and rendition.

Upon motion of appellant duly filed after receipt by us of the mandate of the Supreme Court, appellant was given permission to reargue the questions of law presented by its original brief, not involved in our certificate to the Supreme Court. After carefully reviewing the brief of appellant in light of the opinion of the Commission of Appeals, it is our conclusion that the only remaining question for consideration by us is appellant's proposition asserting that the judgment of the lower court in favor of appellee against it for $6,000 is excessive. We have again carefully reviewed the facts in support of this judgment, as we did on original submission, and, without reciting these facts, it is our conclusion that the judgment is not excessive.

Appellees' motion for rehearing having been reinstated and the judgment of reversal and rendition having been set aside as prayed for in said motion, it is our further order that the judgment of the lower court be, and the same is hereby, in all things affirmed.

Affirmed.