delivered the opinion of the Court.
This suit had its origin in . a motion filed by respondent, Harder, to revive a default judgment against petitioners, Jim Sanders and wife, Jessie Sanders, so that writs of possession and execution might issue thereon. The judgment sought to be revived was rendered on June 17, 1941, in an action of trespаss to try title. It awarded to respondent the title to an 86.27-acre tract of land in Smith County. In answer to the motion to revive, petitioners alleged that no legal service of citation was had upon them before the rendition of the judgment; that they had no knowlеdge, directly or indirectly, of the filing of the suit until long after the judgment was rendered; and that they had a meritorious defense to the cause of action alleged by the respondent in that case. They sought no affirmative relief. Under the holding in the recent casе of Cox v. Nelson,
The case was submitted to the jury on two special issues. Issue No. 1 was as follows: “Do you find from a preponderance of the evidence that citation was not served on Jim Sanders on or about May 29, 1941, in the case of O. Z. Harder v. Jim Sanders et ux #10,481-A?” To that issue the jury answered: “Citation was not served on Jim Sanders.” The other special issue made the same inquiry as to Jessie Sanders, and the jury’s answer was the same as that to issue No. 1.
After the verdict was returned, respondent filed. a motion for judgment non obstante veredicto upon two grounds. The first ground was that a request for admissions under Rule of Civil Procedure No. 169 had been served upon the attorney for рetitioners; that petitioners did not deliver to respondent or to his attorney of record a sworn statement denying any of the matters inquired about in the request or setting forth why they could not either admit or deny the same; wherefore,' it was urged they had made judiciаl admissions binding upon them, and the court should not have admitted any evidence contradicting the facts admitted.
The second ground was that the testimony of petitioners denying that citation was served upon them was not corrobor *596 ated by any other witness or fаct or circumstance in the record; that the testimony of defendants that they had not been served is not sufficient to impeach an officer’s return; and that there being no evidence other than the testimony of petitioners, no issue of fact was raisеd for the jury’s determination.
The court overruled the first ground of the motion but sustained the second ground, and accordingly rendered judgment against petitioners. The Court of Civil Appeals affirmed the case, one of the justices dissenting.
The court did not err in overruling the first ground of the motion. On June 28, 1948, respondent served a request for admissions on petitioners’ attorney, affirmative answers to which would have proved respondent’s case. On July 7, within ten days after the request was served, petitioners replied thereto, denying under oath all the matters inquired about. Their reply was filed with the District Clerk of Smith County, where the case was pending, but respondent did not learn that it had been filed until the case was called for trial. When he learned that it had been filed with the clerk, he did not request a continuаnce but stated in open court that he was not surprised that petitioners claimed that they were not served.
Rule 169 is a part of our pre-trial procedure. Its source is Federal Rule 36, with minor textual changes. The relevant portions thereof arе:
“At any time after the defendant has made appearance in the cause, or time therefor has elapsed, a party may deliver or cause to be delivered to any other party or his attorney of record a written request for the admission by such party * * * of the truth of any relevant matters of fact set forth by the request. * * * Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after delivery thereof or within such further time as the court may allow on motion and notice, the party to whom the request is directed delivers or causes to be delivered to the party requesting the admission or his attorney of record a sworn statement either denying specifically the matters оf which an admission is requested or seting forth in detail the reasons why he cannot truthfully either admit or deny those matters.” An amendment of this rule will become effective March 1, 1950, * but we are not concerned with the amendment here.
*597 The primary purpose of the rule is to simplify trials by eliminating matters about which there is no reаl controversy, but which may be difficult or expensive to prove. It was never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense. When the language of the rule is considerеd in the light of its purpose, there is no doubt that some discretion is lodged in the trial court in its enforcement. The only particular in which petitioners failed to comply literally with the rule is that they filed their reply with the District Clerk instead of the respondent. Had they requested additional time within which to file it with respondent and given him notice thereof, then by the express language of the rule the court could have extended the time. In effect, the reply was delivered to respondent on the day of the trial. A motion at that time to extend the time within which to reply was unnecessary, for it was already delivered to respondent and he had notice of that fact. The court qualified the respondent’s bill of exceptions by stating that he did not ask for a continuance. Had a continuance been requested and granted, there clearly would have been a substantial compliance with the rule. Since respondent did not request a continuance, but instead procured the attendance of the deputy who made the return аnd used him as a witness on the issue of service, there was nonetheless a substantial compliance therewith and the trial court did not err in so ruling.
The ground of the motion for judgment non obstante veredicto which was sustained by the court was, in substance, that there being nо evidence except the testimony of the petitioners themselves that they were not served with citation no issue of fact was raised for the jury’s determination. The return of the sheriff on the citation recites service, and the deputy who made the rеturn testified that he served both petitioners on the date named in the return. That testimony was contradicted by petitioners. Were the denials of service by petitioners the only evidence before the court, then no issue should have been submitted to the jury, for, as held by the Court of Civil Appeals, the return of a sheriff on a citation may not be impeached by the uncorroborated testimony of the party or parties shown by the return to have been served. Gatlin v. Dibrell,
An examination of the record has convinced us that there .are corroborating circumstances in this case. Jim Sanders *598 bought this property in 1925 and moved upon it in 1926. He married Jessie Sanders in 1933, and the рroperty has been occupied by them as a homestead since that date. It would be most unnatural for a husband and wife to ignore a suit which would take their homestead from them. After the default judgment was rendered in 1941 their possession was not disturbed until a writ of scirе facias was served upon them in this case approximately seven years later. That unusual delay unexplained lends some support to petitioners’ testimony. Jim Sanders testified that he made improvements on the property after 1941. Immediately after he made that statement the court sustained an objection made by respondent’s attorney to the admission of any testimony in regard to any improvements. It cannot be known to the court just what character of evidence might have been introduced had not the objection been sustained and petitioners thereby cut off from developing the matter. Other circumstances are relied upon by petitioners, but we think that those mentioned, while not as strong as might be desired, do constitute some comрetent evidence corroborating the testimony of the petitioners.
We do not understand the opinion of the Court of Civil Appeals to hold that there were no circumstances corroborating petitioners’ testimony, but that the circumstances were not clear and convincing, and for that reason were insufficient to destroy the return. In certain types of cases courts have frequently pointed out that the facts must be established by clear and convincing evidence. That rule, as said in Carl v. Settegast (Com. App.),
In the case under review, if there had been no evidence at all impeaching the officer’s return except the testimony of the parties alleged to have been served, then no issue of fact would have been raised, because the return and the testimony would have counterbalance each other and left no evidence to raise an issue, but since some corroborative evidence was offered, the trial judge was authorized, if not convinced thеreby, to set aside the verdict and grant a new trial, but he was not authorized to render a judgment non obstante veredicto. Such judgments are authorized only when there is no evidence warranting a submission of issues to a jury. Rule 301, T. R. C. P.
This brings us to a consideration of the order tо be entered here. In interpreting Rule of Civil Procedure No. 324 this court has held that where an appellate court determines that the trial court erred in rendering judgment non obstante veredicto, it will reverse the trial court’s judgment and render judgment in harmony with the vеrdict unless the appellee files cross assignments of error, pointing out errors committed against him in the trial court which would have prevented an affirmance of the judgment had one been entered by the trial court upon the verdict. Le Master v. Fort Wоrth Transit Co.,
*600 The judgments of both the trial court and the Court of Civil Appeals are reversed, and the cause is remanded.
Opinion delivered February 8, 1950.
Rehearing overruled March 15, 1950.
Notes
See this volume, page 614.