On Appellee’s Motion for Rebearing.
The contention that we erred in failing to dismiss the appeal in this ease because the affidavit of inability to pay costs or give security therefor failed to sufficiently describe the judgment, is overruled. In addition to the reasons upon which we ibased our action as stated in our original opinion, appellant in a reply motion calls our attention to the amendment of article 2266, Rev. Civ. Statutes, passed by the 42d Legislature and effective August 23, 1931 (see Gen. Laws 42d Leg. Gen. Session, c. 134, p. 226 [Vernon’s Ann. Civ. St. art. 2266]), which we think fortifies the conclusion originally -reached by us.
We think appellee misplaces the burden of proof in the contention that we erred in disregarding the findings of the trial court to the effect that the note and deed of trust for $1,200 transferred from the Continental Savings & Building Association was a valid lien against the home of the Davises. It is contended, in substance, that the trust deed constituted prima facie proof of its validity, and that appellant presented no evidence that the items of indebtedness thus secured were not such as would support the lien on the homestead. It is to be observed, however, that appellee in its petition set forth this trust deed which on its face covered the described lots. To appellee’s prayer for the enforcement of this lien against the lots, appellants defended on the ground that the lots at all times involved constituted their homestead, and, when the plea and supporting proof was presented by them, appellee’s prima facie proof was overcome and the burden shifted to it to establish that the indebtedness secured by the deed of trust was such as under our Constitution and laws would support the lien on the homestead. In addition to this, examination of the items of indebtedness secured by this trust deed will disclose that the principal part thereof at least was based upon a purchase of capital stock in the Continental Savings & Building Association and not for a part of the purchase money of the lots in question or for improvements thereon.
It is also vigorously contended that the case should be reversed and remanded to enable appellee to prove the character of the items of indebtedness secured by the trust deed for $1,200. Article 1856, Revised Civil Statutes 1925, provides that, “When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.”
This article and numerous cases are reviewed by our Supreme Court in the case of Sovereign Camp, W. O. W., v. Patton, 117 Tex. 1, 295 S. W. 913, 915, and it is there said:
“Broadly speaking, excluding cases in which the appellate court could not properly render judgment for lack of a finding of fact in the trial court, they were eases where the appellees, because of some excusable misapprehension of the law or facts or some ruling or disposition made of the case by the trial court, failed or were not permitted to present all of their grounds of recovery or of defense or to support the same by some evidence which the record showed to have been available, or probably so. In other words, they were cases which the record showed had excusably been not fully developed, and in which the appellees had not availed themselves of all of the rights and remedies which would be open to them in the event of a new trial. By way of illustration, this condition of the record would appear in a ease Where the Court of Civil Appeals reverses a judgment on the ground that the pleading of appellee was not sufficient on an issue which he could have properly pleaded; -in a case where secondary evidence was held to have been erroneously admitted, when primary evidence was available; and in a case where the judgment was reversed because of error in holding the evidence of appellant not sufficient to raise an issue which might have been met by the appellee, but was not because of the ruling of the trial court. In each of these instances it will be seen that the cases were not fully developed, and a judgment of the appellate court would have worked a hardship upon appellee and denied him a right or remedy of which he could, and would naturally, have availed himself but for the error of the trial court. Chapman v. Witt (Tex. Civ. App.) 285 S. W. 331.
“It is to these classes of cases that the rule growing out of the statutory exception and set out in the opinion of Justice Speer [Associated Oil Co. v. Park (Tex. Com. App.) 277 S. W. 1043], above quoted, applies. This rule should have no application to a case where the issues have been properly pleaded, have been reasonably well developed by the evidence, and then clearly submitted to a jury, with a verdict rendered in favor of appellant on the controlling issue in the case, and where the record fails to show that the appellee took any exception to, or filed any cross-assignment of error on, any part of the proceedings in the trial court. Under such circumstances the trial court, as well as the parties, is bound by the verdict of the jury, unless and until same is set aside on proper grounds; and, if judgment is not rendered by the trial court in accordance *280with the verdict, it is the duty of the Court of Civil Appeals to render the judgment which should have been rendered below.”
Upon the same subject, in speaking of the divergence of opinion arising from a construction of article 1856, it is said in Texas Jurisprudence, vol. 3, page 1217, § 862, that, “Moreover, upon a closer reading of the cases wherein it is said that the case must be remanded in furtherance of justice it is seen that the determining factors requiring a remand are that the appellee has either been prevented from fully developing his case in the trial court, or has excusably omitted to do so, as a result of an erroneous decision of the trial court. In short, it seems that the 'inference to the requirements of justice is a mode of pointing to the rule really applied, viz., that a remand is called for where the case is undeveloped without any fault on the part of appellee.”
In the case now under consideration, it. is to be noted that, as already stated, appellee in its petition set forth the $1,200' trust deed lien with a prayer in the alternative for a foreclosure. This prayer was met by appellants’ plea of homestead, later supported by undisputed evidence. The record fails to show that either by pleading or offered proof did appellee attempt to establish the character of indebtedness secured by this trust deed, nor was any suggestion made to the court at the time that there was evidence available to support a claim that the items of indebtedness so secured were such as might form the foundation of a lien on the homestead, and nothing in the record that we have been able to find indicates that, should the case be reversed, any such proof can be offered. On the contrary, an examination of the statement of facts shows that the $1,206 consisted of $1,000 for the purchase of capital stock in the Continental Savings & Building Association, and there is nothing to indicate that the item referred to as the mechanic’s lien had a basis which would entitle appellee to foreclose a lien on the. homestead. We understand it to be pur duty, under article 1856, Rev. Civ. Statutes, as construed in the case of Sovereign Camp, W. O. W., v. Patton, supra, to reverse and here render this .case under the circumstances shown, rather than to reverse and remand and thus impose delay and costs to both the public and litigants merely to enable appellee to plead and produce evidence, if any it has, that it was given an opportunity to produce upon the trial and no excuse given why it was not offered.
In the case of Maverick v. Routh, 7 Tex. Civ. App. 669, 23 S. W. 596, the San Antonio Court of Civil Appeals had this to say: “Cases are tried by inferior courts with a view to this statute, and with full knowledge on the part of litigants that, if the judgment rendered should be reversed on appeal, it is the plain and unequivocal duty of this court to render the proper judgment, without the case should fail within the exception. Under this statute, the parties to a suit, as the result of the trial, have the right to a proper judgment; and the party who.was entitled to it in the court below cannot be deprived of' it by its failure to do its duty, but can demand 'the right on appeal, and cannot then be deprived of it by a confession of error on the part of his apparently successful adversary, without the court’s passing on the merits of the case.”
In the same case, reported in 7 Tex. Civ. App. 669, 26 S. W. 1008, the court, quoting from the headnotes, further said: “Under Acts 1892, p. 31, § 36, providing that, on reversal of a judgment, the court of civil appeals shall render such judgment as the trial court should have rendered except when it is necessary that some matter of fact be ascertained, or the damages to be assessed or the matter to be decreed is uncertain, the case should not be remanded merely because the successful party in the trial court failed to introduce sufficient testimony to justify the judgment.”
In Standard Paint Co. v. San Antonio Hardware Co., 136 S. W. 1150, 1151, it is further said by the same court, quoting from the headnotes, that “Where plaintiff declared on an express contract and relied on a custom, but did not make sufficient proof of -the custom although he had opportunity to make proof if he had any, there is no necessity for a new trial, and the judgment for plaintiff may be reversed and judgment rendered that plaintiff take nothing.”
We conclude. that appellee’s motion for rehearing and to remand the cause should be overruled.