On Rehearing.
The only feature of the motion for rehearing to which we deem it necessary to refer is that which complains of the rendition of the judgment. In that connection appellee calls attention to cases holding it proper to remand for retrial to permit amendment of the pleadings where the ends of justice will be better subserved by such action. None of the cases cited presented the situation of a judgment rendered in the court below contrary to that required by the verdict. So far as we have been able to discover, the uniform practice in the appellate court is to reverse and render the judgment which should have been rendered in the court below upon the verdict returned. Sovereign Camp, W. O. W., v. Patton, 117 Tex. 1, 295 S.W. 913; Lemm v. Miller (Tex.Civ.App.) 245 S.W. 90, and cases cited; Welch v. United S. F. & G. Co. (Tex.Civ.App.) 54 S.W.(2d) 1041; Smith v. R. Co. (Tex.Civ.App.) 67 S.W.(2d) 362.
It is the imperative duty of the trial court to render the proper judgment upon the verdict returned, or set the same aside and grant a new trial. The only exception to that rule is under the recent amendment to article 2211, R.S.(Acts 42d Leg., p. 119, ch. 77, § 1 [Vernon’s Ann. Civ.St. art. 2211]), authorizing judgment non obstante veredicto in certain cases upon proper motion therefor. Hines v. Parks (Tex.Com.App.) 96 S.W.(2d) 970.
In this case the defendant was entitled to judgment upon the verdict returned, and was denied the benefit thereof. It is the duty of this court to give it the benefit of the verdict in its favor. A denial thereof would be to grant the plaintiff a new trial because of an error committed, not against her, but in he>* fav.or and *642against the defendant This cannot he done with justice to the rights of the defendant.
The motion is overruled.