Thomas, Judge. Action by J. M. McWhorter against Cus Bangley and others. From judgment for plaintiff against the named defendant, after dismissal as to the others, plaintiff appeals.
Cited by 6 later decisions — most recently October 1935
¶2[11]In rendering judgment in this case we followed the general rule that when there are findings of fact, and no error has been committed other than rendering judgment for the wrong party, the appellate court, when it reverses the judgment, will render the judgment which should have been rendered. This rule, however, is not one of universal application. Gose v. Coryell, 59 Tex. Civ. App. 504, 126 S. W. 1164; Purinton v. Gunter & Munson, 3 Tex. Civ. App. 525, 22 S. W. 1008; Neal v. Lehman, 11 Tex. Civ. App. 461, 34 S. W. 153; Elliott v. Morris, 43 Tex. Civ. App. 482, 98 S. W. 220. In this case, had the court rendered judgment for appellant for all .of the land, we would have had the ordinary case in which the findings do not warrant the judgment; but in this case judgv ment was rendered for each party for half of the land, and as to the part of the judgment awarding appellee half of the land we found that the findings of fact did support the judgment.
¶3[12] The appellees having shown by cross-assignments that the judgment is erroneous, and that it must be set aside, cannot contend that it should be set aside in part and affirmed in part, at least where there are no separable issues. We believe that this court has the right to simply reverse the judgment and remand the cause for a new trial; and, it appearing that the evidence has not been fully developed and that it was tried by the court upon a theory of the law which we consider incorrect, we conclude that such course should be adopted. The appellant’s motion for rehearing will be granted to the extent only that, instead of rendering judgment in favor of appellee, the judgment of the trial court will be reversed, and the cause remanded for another trial.
