141 S.W. 517 | Tex. | 1911
The opinion of the Court of Civil Appeals for the Fourth Supreme Judicial District, as reported in
"The authority of the Court of Civil Appeals to enter the judgment in this case rests upon the following article of the Revised Statutes:
"`Art. 1027. When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial in the court below.'
"The jurisdiction of the Court of Civil Appeals is appellate and it has no power to find facts in the first instance. Patrick v. Smith,
Here the bond which formed the basis and foundation of the suit was by the District Court excluded. However erroneous this ruling may *576 have been, the Court of Civil Appeals was not authorized to base a final judgment on testimony which had been by the trial court excluded.
It was, however, suggested in argument by the learned counsel for defendant in error that, inasmuch as the execution of the bond was admitted in the answer of the guaranty company, and since, as they aver, the only matter in dispute was the legal effect and proper construction of same, the Court of Civil Appeals was authorized on appeal to assume its due execution, existence and validity. This proposition can not be sustained. In the case of Duncan v. Magette,
The judgment of the Court of Civil Appeals, therefore, in so far as it renders judgment in favor of the San Antonio Brewing Association against the United States Fidelity Guaranty Company, will be reversed.
We feel, in view of the entire record, that we are not only not called on to discuss and adjudicate the other questions raised on the appeal, but that it would be premature, if not improper, to undertake to do so. To the extent as stated above, the judgment of the Court of Civil Appeals is reversed and the cause will be remanded.
Reversed and remanded.