No. 2725, Application No. 9056. | Tex. | Dec 16, 1914
The suit was a controversy between the State and the plaintiff in error, Post, over certain lands held by the latter, claimed by the State to be vacant and sought by it to be recovered. The trial resulted in a judgment in Post's favor. On the appeal the Honorable Court of Civil Appeals affirmed this judgment on the original hearing, but on motion for rehearing reversed it, and rendered judgment for the State for all of the land.
Adhering to our ruling on the certified question, the Court of Civil Appeals correctly decided that the resurvey was not binding upon the State; but it was without authority to render the judgment. While the trial court rested its judgment upon a holding that the State was concluded by the resurvey, it found as a fact that a part of the land in suit, — not defining the amount, is embraced within the original field notes of the surveys. If it is, the State is not entitled to recover that part of the land. The Court of Civil Appeals found differently from the trial court upon this question, and upon such finding rendered the judgment.
The province of determining questions of fact is in the trial court. The Court of Civil Appeals has the power to set aside its finding and remand the cause for a new trial. Where the evidence is without conflict, it may render judgment. But where there is any conflict in the evidence upon a material issue, it has no authority to substitute its findings of fact for those of the trial court. Choate v. San Antonio A.P. Ry. Co.,
There is evidence in the record, whether correct or not, which supports the trial court's finding of fact that the original field notes of the surveys include a part of the land in controversy. The case should, therefore, have been only remanded.
The judgments of the District Court and the Court of Civil Appeals are reversed, and the case is remanded for the settlement of this issue.
(Associate Justice Hawkins, being disqualified, did not participate in the decision.)
Reversed and remanded. *502