Durham v. I. C. T. Insurance Co.

On Rehearing.

Appellants in their motion for rehearing say that instead of merely .reversing the judgment and remanding the case for a trial on the merits, we should go further and render judgment in their favor.

This was a summary judgment based on appellee’s motion. We reversed and remanded for trial on the merits because we believe there are fact questions presented in regard to the ownership of the automobile in question. Appellants themselves raised the issue. Here is their point No. 1 on appeal:

“The evidence on appeal was conflicting. The Court, therefore, erred in granting the motion and rendering a summary judgment denying appellants any recovery.”

If the evidence was conflicting, as appellants say it was, certainly it would not be proper for us to render judgment on appeal.

Moreover, appellants did not file a motion for summary judgment. In the absence of such a motion neither the 'trial court nor this Court may render a summary judgment in their favor. Rule 166-A, Texas Rules of Civil Procedure.

Appellants’ motion for rehearing is overruled.