joined by Justices Griffin and Wilson, dissenting.
I dissent from the judgment rendered on motion for rehearing and respectfully enter my protest against the lately developed and developing practice by this court of remanding this type of case to the trial court for retrial without giving the Courts of Civil Appeals an opportunity to decide whether the verdict of the jury or the judgment of the trial court is contrary to the great weight and preponderance of the evidence. The practice is an indirect invasion of the exclusive constitutional jurisdiction of the courts of civil appeals, is not commanded by, but is contrary to, the wording and spirit of the Rules of Civil Procedure, and is a disservice to the administration of justice in that it tends to unnecessary delay in the termination of litigation.
The question usually arises in this fact situation: A court of civil appeals sustains a point of error that there is no evidence of probative force to support a jury verdict or a trial court judgment and, having done so, does not rule on a point of error that the verdict or judgment is contrary to the great weight and preponderance of the evidence. This court then grants a writ of error and upon analyzing the evidence concludes and holds, contrary to the holding of the court of civil appeals, that the verdict or judgment is supported by evidence of probative force. The question then arises: Should we remand the case to the court of civil appeals for its consideration and decision of the point challenging the sufficiency of the evidence or should we remand to the trial court for retrial?
Article V, Section 6 of the Constitution of Texas makes the jurisdiction of the courts of civil appeals exclusive and final on the question of the sufficiency or insufficiency of the evidence to support a jury verdict or a trial court judgment. Under the Constitution it is the solemn duty and exclusive prerogative of the courts of civil appeals to exercise that jurisdiction. In other situations we scrupulously observe that exclusive jurisdiction. *557But in the cases cited in the per curiam opinion this court has invaded that jurisdiction through the use of a so-called “presumption” or “assumption” that the court of civil appeals either had decided the question in a particular manner (when there was nothing in the opinion to show that it had), or that it would have so decided it if it had reached it. By whatever name the procedure may be called and by whatever device the result may be reached, it is and can be nothing more than an assumption, and exercise, by this court of jurisdiction to pass on a question of which it has no jurisdiction under the Constitution.
The cited decisions have led us into wholly inconsistent and anomalous positions in the field of procedural law. We have held, consistently, that a point of error that there is “no evidence” to support a jury verdict or trial court judgment does not and cannot “include” a contention that the evidence is “insufficient” to support the verdict or judgment: Hall Music Co. v. Robinson, 117 Texas 261, 1 S.W. 2d 857; Ochoa v. Winerich Motor Sales Co., 127 Texas 542, 94 S.W. 2d 416; Liberty Film Lines v. Porter, 136 Texas 49, 146 S.W. 2d 982; Wisdom v. Smith, 146 Texas 420, 209 S.W. 2d 164; Parker Petroleum Co. v. Laws, 150 Texas 430, 242 S.W. 2d 164; and yet, by the cited cases, we have held that a ruling on a “no evidence” point can and does “include” a ruling on an “insufficient evidence” point. Moreover, it is well established that a question of “no evidence” is a law question and a question of “insufficient evidence” is a fact question; Choate v. San Antonio & A. P. Ry. Co., 91 Texas 406, 44 S.W. 69; International & G. N. Ry. Co. v. Vallejo, 102 Texas 70, 113 S.W. 4; Electric Express & Baggage Co. v. Ablon, 110 Texas 235, 218 S.W. 1030; Liberty Film Lines v. Porter, supra; Childre v. Casstevens, 148 Texas 297, 224 S.W. 2d 461, and the effect of the cited cases is that when a court of civil appeals has decided only a law question, we will presume or assume that it also decided a fact question.
Rule 503, Texas Rules of Civil Procedure, makes it optional with this court whether the cause is remanded to the court of civil appeals or to the trial court. It provides: “If the judgment of a Court of Civil Appeals shall be reversed, the Supreme Court may remand the case either to the Court of Civil Appeals from which it came or to the district court for another trial. * * *.” When read in connection with rules governing courts of civil appeals, however, it is obvious that they are brought into greater harmony by a remand to the court of civil appeals in the instant fact situation. Rule 451 directs that “The Courts of Civil Appeals shall decide all issues presented to them by proper *558assignments of error by either party, whether such issues be of fact or of law, and announce in writing their conclusions.” Rule 453 provides: “Conclusions of fact and law upon each material point assigned as error in the Court of Civil Appeals shall be made and filed within thirty days after the decision of the case, if the case be one in which the Supreme Court has jurisdiction of an application for writ of error. * * *.” Rule 454 provides: “In cases where the judgment of the trial court shall be reversed and the cause remanded the Court of Civil Appeals shall state its reasons for the judgment.”
While a court of civil appeals may, and often does, decide both the law question of “no evidence” and the fact question of “insufficient evidence” in its original opinion in a case, it is under no compulsion to decide the fact question if it has held, on the law question, that there is no evidence to support the verdict or judgment. The fact that it may have decided the law question erroneously, however, should not deny to it the right or relieve it of its solemn duty to decide the fact issue and announce its conclusion in writing as required by Rule 451, or to determine if the trial court’s judgment should be reversed and the cause remanded because it deems the verdict or judgment to be contrary to the weight and preponderance of the evidence, and thereupon to “state its reasons for its judgment” as required by Rule 454. It has been suggested that having ruled there was no evidence the courts of civil appeals, on remand, would undoubtedly hold the evidence insufficient. I do not deem it so in the light of the fact that cases hereinafter to be cited will show that in numerous such situations they have held, on remand to them of the fact question, that the evidence was sufficient to support the jury’s verdict or the court’s judgment. But be that as it may, it is no sufficient reason for denying them the right or excusing them from the duty conferred and enjoined on them by the Constitution and the Rules of Civil Procedure. Moreover, if the courts of civil appeals wish to avoid that situation they may do so by deciding both questions in the first instance. On the other hand, they should be permitted, if they prefer, to decide only the law question in the first instance and reserve judgment on the fact question until after this court has acted on the law question.
There is no reason to say that we are bound by the cited decisions to follow the course of the per curiam opinion. It is purely a matter of procedure. Neither vested rights nor property right are involved. Moreover, not all of our decisions have followed the procedure of those cases. Long v. Long, 133 Texas *55996, 125 S.W. 2d 1034 is in direct conflict, and others are in conflict at least in part and in spirit. See Henry v. Kirby Lbr. Co., 110 Texas 218, 215 S.W. 451, on rehearing, 218 S.W. 363; Ferguson v. Harris, 137 Texas 592, 156 S.W. 2d 135; Baker v. Baker, 143 Texas 191, 183 S.W. 2d 724. It thus appears that even if we are disposed to be governed by the rule of stare decisis in this purely procedural matter, we have a choice of which line of decisions we will follow.
Lest it be thought that the reasons given above for differing with the majority are of a purely technical character, let us now consider which course would better promote the administration of justice in finally disposing of litigation.
If we remand to the Courts of Civil Appeals those courts will pass directly on the sufficiency of the evidence. If they hold the evidence sufficient, the trial court’s judgment will be affirmed and the litigation will be at an end. If they hold the evidence insufficient, the losing party will know that unless he can obtain new or different evidence it would be futile to retry his case, and the litigation, in the normal and usual situation, will be at an end. By remanding to the Courts of Civil Appeals the litigation will thus normally be ended within six months after this court’s judgment is entered. On the other hand, if we remand the case to the trial court on our “presumption” that the Court of Civil Appeals would have reversed for insufficiency of the evidence if it had ruled on the point, the parties have no way of knowing whether the presumption is a sound one without seeking a new place for retrial on a crowded trial docket, and wending their tortuous way back to the Court of Civil Appeals a second time. This procedure will require from a year to two or more years to get the case finally disposed of. No matter what the Court of Civil Appeals’ ruling on the second appeal, it could have made the same ruling a year or more earlier if we had only afforded it an opportunity.
What has been said about the practical effect of the two courses of procedure is not pure theory or speculation. Its soundness, in fact, is demonstrated in the decided cases. Let us first notice the results in those cases which have been remanded to the courts of civil appeals.
In Kirby Lbr. Co. v. Henry, 178 S.W. 23, the Court of Civil Appeals held that the evidence established contributory negligence as a matter of law and reversed a trial court judgment for the plaintiff and rendered judgment for the defendant. This *560court held the ruling of the Court of Civil Appeals to be erroneous, and, on original submission reversed the judgment of the Court of Civil Appeals and affirmed the judgment of the trial court. 110 Texas 218, 215 S.W. 451. On rehearing, the judgment affirming the trial court’s judgment was withdrawn and the case was remanded to the Court of Civil Appeals so that it might pass on questions exclusively within its jurisdiction, principally that the evidence was insufficient to support the jury finding that there was no contributory negligence. 218 S.W. 363. Within ten months thereafter the litigation was terminated by a holding of the Court of Civil Appeals (contrary to the presumption we are want to indulge) that the evidence was sufficient to support the verdict. 224 S.W. 814.
In Ferguson v. Harris, 135 S.W. 2d 595, the Court of Civil Appeals held that a vital fact issue was established by the evidence as a matter of law and reversed a trial court judgment, but because of errors in the charge remanded the case for retrial. This court disagreed with the Court of Civil Appeals’ holding that the fact was established as a matter of law and remanded the case to the Court of Civil Appeals to permit it to pass on an assignment attacking the sufficiency of the evidence to support the fact finding. 137 Texas 592, 156 S.W. 2d 135. Within three months the litigation had been finally terminated by a holding by the Court of Civil Appeals (contrary to the presumption so frequently indulged by this court) that the evidence was sufficient to sustain the verdict. 159 S.W. 2d 950.
In Baker v. Baker, 169 S.W. 2d 1016, the Court of Civil Appeals held there was no evidence to sustain certain jury findings and reversed and rendered. This court held that holding to be erroneous but instead of remanding to the trial court upon a presumption that the Court of Civil Appeals had also held the evidence insufficient, remanded the case to the Court of Civil Appeals with instructions to pass on the insufficiency assignment. 143 Texas 191, 183 S.W. 2d 724. This the Court of Civil Appeals did within six months and sustained the assignment. 188 S.W. 2nd 733. The case was relitigated but upon a somewhat different theory. 207 S.W. 2d 244.
In Long v. Long, 98 S.W. 2d 236, the Court of Civil Appeals held there was no evidence to support the jury’s verdict of undue influence. It did not pass on an assignment that the evidence was insufficient to support the jury’s verdict. This court reversed the judgment of the Court of Civil Appeals but remanded to that court to pass on the insufficiency assignment. *561133 Texas 96, 125 S.W. 2d 1034. The Court of Civil Appeals then held the evidence was sufficient to support the jury’s verdict and affirmed the judgment of the trial court. 129 S.W. 2d 1206, writ of error dismissed, 133 Texas 623, 138 S.W. 2d 798. Thus the litigation was ended, to all intents and purposes, within four months after this court had ruled on the no evidence question. What is more, the ruling of the Court of Civil Appeals on the sufficiency question was exactly contrary to what we would have presumed it to be if we had followed the course adopted by the majority in this case.
Now let us examine the history of Lowry v. Anderson-Berney Bldg. Co., cited in the majority opinion. The Court of Civil Appeals held there was no evidence to support a jury finding that the plaintiff was injured in the course of his employment and reversed and rendered. 143 S.W. 2d 401. This court disagreed with that holding and reversed the judgment of the Court of Civil Appeals, but, indulging the presumption that the Court of Civil Appeals would also have held the evidence insufficient to support the finding, remanded to the trial court. 139 Texas 29, 161 S.W. 2nd 459. The case was retried and reached the Court of Civil Appeals again nearly two years after this court had remanded to the trial court. On the second appeal the Court of Civil Appeals overruled an assignment attacking the sufficiency of the evidence even though it found the “testimony on this trial is substantially the same as it was on the former trial.” 177 S.W. 2d 984, 985. The ruling was exactly contrary to the presumption this court had indulged on the first appeal. Moreover, if the Court of Civil Appeals had been permitted to exercise its exclusive jurisdiction on the first appeal the litigation would have been terminated two years earlier and a second trial and appeal, with their added expense to the litigants, would have been unnecessary.
Texas Ind. Ins. Co. v. Halliburton has a similar history. In that case the Court of Civil Appeals held there was no evidence to support a jury finding that the injured plaintiff was an employee of the insured. 209 S.W. 2d 775. This court ruled that holding erroneous, but, indulging the presumption that the Court of Civil Appeals would also have held the evidence insufficient, remanded the case to the trial court. 147 Texas 133, 213 S.W. 2d 677. The case was retried and reached the Court of Civil Appeals again more than two years later. That court then overruled an assignment attacking the sufficiency of the evidence (directly contrary to what this court had theretofore presumed it would do) and affirmed the trial court’s judgment. 235 S.W. *5622d 499. But it took two years, a second trial and a second appeal for the parties to obtain a holding that might well have been made within two months if the case had been remanded to the Court of Civil Appeals in the first instance.
Turning now to the record in this case, it appears that respondent’s right to reform for mutual mistake was based upon an alleged agreement that the disputed strip was not to be conveyed. The jury found no such agreement was made and judgment was rendered for petitioner. The Court of Civil Appeals reversed and remanded for lack of necessary parties. In the course of its opinion that court had occasion to say that “the evidence was sufficient to establish as a matter of law that such mutual mistake occurred.” Quite obviously, however, the main law question dealt with by the court was whether the nature of respondent’s suit was one to reform the deed in question or one to establish and enforce an equitable title. This court regarded the issue of mutual mistake as the controlling issue in the case, and in the opinion of the court Justice Griffin made an exhaustive analysis of the evidence to demonstrate that the evidence did not establish mutual mistake as a matter of law. The question of the sufficiency of the evidence to sustain the finding that the alleged agreement was not made has not been decided by the Court of Civil Appeals and, under the Constitution, cannot be decided by this court. It is therefore my opinion that we should not decide the question by indirection but should remand the case to the Court of Civil Appeals that it may exercise its exclusive jurisdiction to decide it. If in the light of our analysis of the evidence and its mature consideration thereof the Court of Civil Appeals should conclude that the jury verdict is contrary to the great weight and preponderance of the evidence, it should have no hesitancy in reversing the judgment and remanding the case for retrial. If it should reach the opposite conclusion, it should affirm. In either event what we have said on the law question of “no evidence” should be no impediment and no source of embarrassment to the Court of Civil Appeals’ own proper evaluation of the evidence on the fact question of “insufficient evidence” because that court and that court alone is made the final arbiter of that question.
The specific prayer of the respondent in its motion for rehearing is that this case be remanded to the Court of Civil Appeals so that court may pass on its point of error challenging the sufficiency of the evidence. That prayer ought to be granted. The respondent should not be put to the time and expense of trying its case again with the possibility that a jury will again make the same finding and the Court of Civil Appeals will uphold *563that finding as having sufficient support in the evidence. In the absence of new evidence the rights of the parties on the question involved can be determined now by a remand to the Court of Civil Appeals. In my opinion, for the reasons given, the case should be so remanded.
Opinion delivered October 20, 1954.