UM & M. CREDIT CORPORATION v. Doss

ON MOTION FOR REHEARING

At appellant’s request we correct our statement of the testimony of the witness H. H. Boyer, What he said, when asked what Doss’ place of business consisted of, was, “Well, it is machinery, Case machinery, such as tractors and backhoe diggers or whatever they call them, and he had a shop there that he works on them, I guess. That is where he works on them. He has some trucks and pick-ups — a pick-up.”

Appellant also complains that we misstated its position when we wrote that it insisted “that, since it was shown without dispute that Doss had certain property in his possession, the sheriff’s failure and refusal to levy the execution thereon automatically renders him and his surety liable for the full amount of judgment, etc.” Appellant urges that its contention is, not that the sheriff would be absolutely liable regardless of any defense'asserted by him, but that the trial court erred in finding that there was “no evidence” of any property upon which the execution could have been levied and in admitting testimony relating to the claimed mortgages on the property in the face of appellant’s objection that this evidence was not admissible under a general denial. Appellant says it made its prima facie showing of property *49of substantial value in the possession of Doss and that since there was no pleading of an affirmative defense by the sheriff, the court should not have admitted the testimony proffered by the sheriff as to the existence of the mortgages .on property owned by Doss and his non-ownership of other property and that we should now render the judgment the trial court should have rendered (Rule 434, T.R.C.P); i.e., in appellant’s favor for the full amount of its judgment against Doss.

We sustained appellant’s sixth point of error complaining of the action of the court in admitting the said testimony. This necessitates reversal but does not require us to render the judgment.

Being of the opinion that the case was tried on the wrong theory, or under an erroneous understanding of the applicable legal principles, we reversed and remanded. We are not persuaded that we could properly have done otherwise. We do not feel that the case has been fully developed, and believe that the ends of justice would be better subserved by remanding than by rendering. We feel that our decision in this respect is fully supported by the authorities, such as Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846 (1954), wherein it was said by the Supreme Court, speaking through Chief Justice Hickman: “The fact that a peremptory instruction would have been justified does not necessarily mean that the cause should not be remanded to the trial court,” and wherein the following language was quoted from Associated Oil Co. v. Hart, 277 S.W. 1043, 1045 (Tex. Comm’n App.1925, holding approved) : “It is the rule, where a judgment has been reversed, to remand to the trial court rather than to render, where the ends of justice will be better subserved thereby. Such remanding has often been ordered to supply additional testimony, to amend the pleadings, and even to show jurisdiction.” (Italics ours.) See also Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, 379 (1959) ; London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944); Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 704 (1951) ; Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 520 (1959); Pelham Manufacturing Co. v. Ridlehuber, 356 S.W.2d 502, 504 (Tex.Civ.App., Waco 1962, writ ref’d n.r.e.); Hoggett v. Wright, 374 S.W.2d 690, 694 (Tex.Civ.App., San Antonio 1964, writ ref’d n. r.e.); and Atchison, Topeka & Santa Fe Ry. Co. v. Porter, 411 S.W.2d 615, 620 (Tex.Civ.App., Amarillo 1967, writ ref’d n.r.e.).

Appellant’s motion for rehearing is overruled.