While I agree with the disposition of the case as shown by the opinion of Justice WALTHALL, I am not in entire agreement with the reasons stated therefor. In my opinion the testimony of Mariah Taylor was sufficient to raise an issue for the jury.
The judgment appealed from was rendered on a motion non obstante veredicto. Authority to entertain such a motion is derived from Article 2211, R.S. 1925 as amended by Acts 42nd Legislature, 1931, Vernon's Ann.Civ.St. art. 2211. Before the amendment to the statute a court was without authority to enter judgment non obstante veredicto. Henne Meyer v. Moultrie, 97 Tex. 216, 77 S.W. 607; Oklhoma City T. R. Co. v. Magee, 63 Tex. Civ. App. 124, 132 S.W. 901; Massie v. Hutcheson, Tex.Com.App., 270 S.W. 544.
The exercise of this power by the courts is conditioned upon the propriety of a directed verdict in the case. In this case appellee moved for a directed verdict, which the court refused. Before the submission of the case appellee by special charge sought to have the jury instructed to disregard the testimony of appellant in substance and effect that she had paid for the land in controversy with her separate funds. These special charges were refused by the court.
Appellee, throughout the examination of appellant, by objection, sought to have the testimony of appellant excluded. The objections were overruled by the court. In any event, this testimony was in the record. Without this testimony in the record there could be little question but what it would have been the duty of the trial court to have instructed a verdict in favor of plaintiff.
It cannot be said that her testimony lacked relevancy or probative force. The testimony was relevant and had probative value. Walker et al. v. Fields et al., Tex.Com.App., 247 S.W. 272, 273, loc. cit. 275; Hunt v. Garrett, Tex.Civ.App. 275 S.W. 96, reversed on other grounds, Tex.Com.App., 283 S.W. 489; Hein v. DeBusk, Tex.Com.App., 277 S.W. 1053; Roberts v. Carlisle, Tex.Civ.App. 4 S.W.2d 144.
If objection had been sustained to this testimony in limine appellant would have had an opportunity to have produced other evidence if same was available to her. Even if the court at the time the motion to instruct was made had sustained the motion to strike this testimony, it is probable that appellant would have been afforded a reasonable opportunity to produce other testimony if same was available.
In other words, in ruling upon the motion for judgment the court was without power to strike this evidence from the record. If the court deemed the former ruling on the admissibility of the testimony incorrect, on motion for new trial such error could have been remedied.
On the motion for judgment the court could either grant or refuse same. The granting of the same did not amount to setting aside the verdict — it was ignoring same because without support in the evidence. If the motion was not sustained, the court might either render judgment in accordance with same, which in this case would have been for the defendant, or set same aside. In my opinion the court was in the same position as though the evidence of appellant Mariah Taylor had been admitted without objection. It was in the record, the jury had been discharged, and it could not then be stricken out. Reed v. Robertson,106 Tex. 56, 156 S.W. 196.
While the testimony of Mariah Taylor might have been more clear and explicit, she did say that she paid out of her separate funds the $600 cash consideration expressed in the deed from Hammond and wife to her husband. Had she explained just to whom this money was paid, where, and who was present, it might have strengthened the testimony. This does not appear in the statement of facts. Counsel for the appellee had an opportunity to cross-examine her on these points. It may be they refrained from doing so for fear of waiving their objection to her competency under Article 3716, R.S. Giving her testimony the favorable construction which we are bound under the law on a motion to instruct or for judgment non obstante veredicto, in my opinion the question was for the jury. A verdict having been rendered supported by evidence in the record, the *Page 770 trial court should have rendered judgment thereon in favor of the defendant. It is our duty to render the judgment the trial court should have rendered.
Justice Higgins concurs in the foregoing.