DocketNumber: No. 3793.
Citation Numbers: 260 S.W. 565, 113 Tex. 507
Judges: MR. JUSTICE GREENWOOD delivered the opinion of the Supreme Court.
Filed Date: 4/2/1924
Status: Precedential
Modified Date: 1/13/2023
On recommendation of the Commission of Appeals, the Supreme Court entered a judgment affirming the judgment of the Court of Civil Appeals remanding this cause for a new trial, with directions to the District Court to be governed by the opinion of Presiding Judge Gallagher.
On consideration of defendants in error's motion for rehearing we are satisfied that it was erroneous to grant plaintiffs in error's motion for rehearing and to change the judgment originally recommended by the Commission.
The District Court gave judgment for plaintiff in error Marshburn for a certain undivided interest in the land in controversy on findings of fact that he acquired such interest as a purchaser in good faith, for value, and without notice. The findings were assailed by proper assignment of error as without support in the evidence, on appeal by defendants in error. The assignment was sustained. The opinion of the Court of Civil Appeals based its decision on erroneous principles of law, under which certain undisputed facts were held conclusive that Marshburn was chargeable with notice of the adverse claims. The second recommendation of the Commission reflected the view that no findings of fact were made by the Court of Civil Appeals which were inconsistent with the facts found by the trial court, and that since the error of the Court of Civil Appeals lay wholly in an *Page 519 erroneous application of the law, the Supreme Court was empowered to reverse the judgment of the Court of Civil Appeals and to affirm that of the trial court.
This case comes within the rule that in a case remanded by the Court of Civil Appeals for a new trial on the facts, its finding of no evidence, though one of law, must be held, in the absence of contrary language, to include the finding of insufficient evidence, though one of fact, and that hence the order of remand must be respected by the Supreme Court. The constitution and statutes defining and regulating the jurisdiction and practice of the Supreme Court and of the Courts of Civil Appeals have been uniformly so construed since a few years after their original adoption. We followed the rule in the first judgment herein and erred in departing therefrom in our second judgment.
In Southern Cotton Oil Co. v. Wallace,
The Court, per Justice Brown, gave the following reason for not affirming the trial court's judgment, viz: "The Court of Civil Appeals erred in holding that the District Court should have instructed the jury to find for the defendant, but that court had the authority to reverse the case because the evidence was not sufficient, and we consider that the insufficiency of the evidence was necessarily embraced in the finding of the court that there was no evidence to sustain the plaintiff's claim that he was the servant of the defendant below; hence we cannot reverse the judgment of the Court of Civil Appeals, and affirm the judgment of the District Court, but this case will be remanded to the District Court for trial in accordance with this opinion." Wallace v. Southern Cotton Oil Co.,
There is a difference in the authority of the Supreme Court in causes wherein the Court of Civil Appeals enters a final judgment by affirming that of the trial court or by rendering a different judgment, and in causes wherein the judgment of the trial court is reversed and the case remanded for a new trial. The distinction was stated with clearness and precision in Tweed v. Western Union Telegraph Company,
"Beck v. The Texas Company,
The cases of Walton v. Walton,
We cite from the numerous recent decisions adhering to the stated practice in cases of this character the following: Electric Co. v. Ablon,
It is ordered that the judgments heretofore entered herein be set aside and that the judgment of the Court of Civil Appeals reversing the judgment of the District Court and remanding this cause be affirmed, and that the District Court be governed by the opinion of Presiding Judge Gallagher, filed October 24, 1923, in the further proceedings herein.
Reversal and remand affirmed with instructions. *Page 521