132 S.W. 901 | Tex. App. | 1910
This is the third appeal of this case, and a reference to the opinion on the second appeal, reported in 56 Texas Civ. App. 552[
We are now confronted with the contention of appellant that the verdict of the jury itself, upon which the judgment was entered, was not decisive of all the issues of fact in the case, and itself could not form the basis of the court's judgment. This contention must be sustained. It is elementary law under our system that the judgment must follow the verdict. As said by Mr. Justice Brown in Ablowich v Greenville Natl. Bank,
The action was one of trespass to try title and for damages, in which the defendant disclaimed as to all the lands sued for except a strip fifty-six feet wide, alleged to be a part of McClelland Avenue, as to which it pleaded not guilty, and also specially pleaded its right to construct its railroad, switches, etc., thereon. Conceding that appellant's special plea as to its title would limit it in its recovery, it does not follow that appellee, as plaintiff below, was relieved of the burden of establishing his title to the land in controversy, for if he failed in this respect, the defendant would have judgment as of course. The question of title to the fifty-six feet was then an issue under the pleadings, and if it be conceded, as it may, that the court did not err in instructing the jury that plaintiff had title to the land, nevertheless, there was no finding by the jury in obedience to such instruction, without which the court is powerless to enter judgment. The court may instruct a verdict, but he can not return one.
We did not discuss this question on the last appeal, for we had no jurisdiction of the appeal. On the present appeal we have jurisdiction because the judgment in form is final but is based upon an insufficient verdict, for which error the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.