Scott v. Molter

On Motion for Rehearing.

Both'parties have filed able motions for rehearing. We have re-examined the record with reference to the complaints urged by the parties. We are of the opinion that the evidence contained in the record presented a jury question in regard to the boundary of the lot in question. We have also examined the evidence with reference to the asserted right of a forfeiture of the contract of sale. We have concluded that we correctly decided both phases of the case in our original disposition.

One of the complaints of Mary Molter, in her motion for rehearing, is that we should have affirmed the judgment upon the issues presented in the action to declare a forfeiture of the contract of sale and reversed and remanded for another trial that part of the judgment which disposed of the action in trespass to try title, which involved the boundary dispute.

After mature consideration we have concluded that the issues involved in the boundary dispute and the action to declare a forfeiture of the contract of sale are severable.

In 3 Texas Jur. p. 1150, § 810, it is said: “In a proper case, if error is found as to one or more issues only, the judgment being in other respects free from error, the cause may be reversed and remanded for retrial of the erroneously decided issues alone. .As is remarked in an opinion in one of the cases, it would indeed be unfortunate if, after a fair and impartial trial has been had of one of the issues involved, the rules of procedure were such that, without any apparent reason therefor, the trial court should be again required to determine this same issue upon reversal for error affecting only another and separate issue.” Durham v. Scrivener, Tex.Com.App., 270 S.W. 161.

In our original disposition, and upon reconsideration, we are of the opinion that the trial court erroneously refused to submit to the jury the issues involving the boundary dispute but correctly determined that the appellant did not show any right to declare a forfeiture of the contract of sale..

Pursuant to these conclusions, we are of the opinion that the appellees’ motion for a rehearing should be in part granted, and, accordingly, that part of the judgment rendered by the trial court which denied the appellant the right of a forfeiture of the contract of sale will in all things be affirmed, and that part of the judgment in regard' to the boundary dispute will be reversed and remanded for another trial, with costs of this appeal adjudged against the appellees.