I do not concur in this opinion.
On Appellee's Motion for Rehearing. In his motion for rehearing appellee says: "For reasons, unnecessary to discuss at this time, the appellee has been before this Honorable Court without having a brief to assist the court in their determination of the case. This is probably the reason that this Honorable Court predicated their reversal of the case upon certain findings wholly unsupported by the record. The appellant's brief consistently and repeatedly misstated the record and what would be found in the record of this case and it is obvious that the Court of Civil Appeals was misled by these statements, which, upon investigation, will be found to be erroneous."
The case was originally presented to this court in an exhaustive brief by appellant, to which appellee made no reply. Upon affirmance of the judgment appellant again thoroughly briefed the case in his motion for rehearing, which appellee also saw fit not to contest. In his brief and motion appellant stated the facts of the case in detail, with copious extracts from the evidence in the record, and, after thorough reconsideration, this court set aside the judgment of affirmance and reversed the judgment and remanded the cause. And now in his motion for rehearing appellee asserts that the statements made in appellant's brief and motion were not supported by, but were contrary to, the record, and complains that this court was misled by those statements. This assertion and complaint come too late, they were waived by appellee's failure to file any brief upon the original submission or contest appellant's motion for rehearing, or otherwise appear in the appeal. Courts of Civil Appeals Rule 31; West Texas Utilities Co. v. Pennington (Tex.Civ.App.)11 S.W.2d 583; Panhandle Motors Co. v. Foster (Tex.Civ.App.) 245 S.W. 269; Marshburn v. Stewart (Tex.Civ.App.) 295 S.W. 679; Hartford Fire Ins. Co. v. Owens (Tex.Civ.App.) 272 S.W. 611; Lancaster v. Norris (Tex.Civ.App.)271 S.W. 401; Daniels v. Franklin (Tex.Civ.App.) 233 S.W. 380. It is proper to add that this court thoroughly reviewed the record and reached the conclusion that appellant correctly stated and construed the facts. It was upon this conclusion in the final analysis that the judgment was reversed.
Appellee's motion for rehearing is accordingly overruled.