On Motion for Rehearing
CHAVEZ, Justice.In the motion for rehearing, appellee, in addition to other grounds, seeks a rehearing by reason of our directing a judgment for appellant, even though such relief was not sought.
To clarify such direction, it need be mentioned that appellee had an opportunity to present evidence which might tend to dispute the facts, but he did not do so and rested his case. The facts of the case were not disputed. Actually, counsel for appellee in his opening statement so advised the court and jury. Additionally, there was, for all practical purposes, no cross-examination which would raise any factual question for the ju'ry’s determination, the sole issue being a proposition of law that the occurrence which caused the damage had not been shown to be within the coverage of the insurance policy. By our decision herein, this court has answered that question. Since no factual issue remains, the ends of justice will be better served by a mandate which will bring this litigation to an end and, under such circumstances, it is the province of this court to direct the entry of a proper judgment. See Rogers v. Kemp Lumber Co., 18 N.M. 300, 137 P. 586, 51 L.R.A.,N.S., 594; Willis v. Kronendonk, 58 Utah 592, 200 P. 1025, 18 A.L.R. 947; Bolian v. Washington-St. Tammany Elec. Coop., Inc., 218 La. 734, 50 So.2d 823, 25 A.L.R.2d 716; Electrical Contractors’ Ass’n of City of Chicago v. A. S. Schulman Elec. Co., 391 Ill. 333, 63 N.E.2d 392, 161 A.L.R. 787; United States v. 449 Cases, 2 Cir., 212 F. 2d 567, 45 A.L.R.2d 846; and Liberty Mutual Ins. Co. v. Hercules Powder Co., 224 F.2d 293, 54 A.L.R.2d 513.
The other point raised by appellee’s motion for rehearing involves a matter which has been fully disposed of in the above opinion. The motion for rehearing is denied. It is so ordered.
CARMODY and NOBLE, JJ., concur. COMPTON, C. J., and MOISE, J., not participating.