Cactus Drilling Co. v. Ozark Gas & Oil Co.

BARROW, Chief Justice,

dissenting.

I respectfully dissent to the rendition of the judgment. The record shows that ap-pellees, who were defendants below, moved for an instructed verdict at the close of appellant’s case. At that time counsel for defendants stated:

We would like at this time, Your Hon- or, if Mr. Sullivan has rested, to make a motion before we put on any evidence of our own. If the Court overrules our motion we will have evidence to put on of our own.

It was the contention of defendants that the pleading of plaintiff that it had a lien was made for the sole purpose of retaining venue in Zavala County. Although defendants did not expressly plead that the allegation of a lien in plaintiff’s controverting plea was fraudulently made, evidence to this effect was admitted without objection. Their motion for instructed verdict was made on the basis that this contention was shown by plaintiff’s own evidence. In making such motion, defendants expressly reserved the right to put on evidence should the motion not be granted. I would remand the case to the trial court to enable defendants to present their evidence. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948).