ON MOTION FOR REHEARING
Appellee has filed its motion praying that we set aside our judgment of remand and render judgment against it in the amount found by the jury as appellant’s damages. In other words appellee now desires to pay the damages so found and confesses liability to appellant in said amount.
Appellant protests and resists the motion of appellee. Obviously the appellant hopes to obtain a finding on damages, upon the occasion of another trial, which will be greater than the amount formerly found.
In connection with its motion appellee directs our attention to parts of the record which were immaterial to our examination and analysis in passing upon the point of error presented in the briefs. For example, appellee points out that appellant filed a motion in the trial court to disregard the jury findings upon contributory negligence and to render judgment in his behalf in the amount found by the jury. Appellant made the trial court’s refusal to so render a judgment non obstante veredicto an assignment of error in his motion for new trial, but not of any point of error in this court.
In 4 Tex.Jur.2d, p. 539 “Appeal and Error — Civil”, sec. 924, “Rendition on confession of error”, (3-B Tex.Jur., p. 634, sec. 1029), cases are cited where appellate courts have withdrawn orders remanding causes for new trial upon confessions of liability, etc. made in motions for rehearing which sought rendition rather than remand, and rendered judgments in accordance with appellees’ prayers. In most of these cases both parties to litigation have sought rendition rather than remand, although in Warnack v. Conner, 1934 (Tex.Civ.App., El Paso), 74 S.W.2d 719, it was only the ap-pellee who moved for rendition. In such case the appellant filed no objection to the request. In the instant case appellant is found protesting and strenuously objecting to any action of the court other than to overrule appellee’s motion for rehearing.
Foundation for our action of reversing and remanding the judgment of the lower court in the instant case has been our “un-finding” the “finding” of the jury on the matter of appellant’s contributory negligence. Based upon said “finding” the court had rendered judgment against him.
In none of the cases to which we are cited does it appear that the parties were adversaries upon the action requested. Here the contrary is true. Although propriety of the accommodating action of the courts in the cited cases is not to be doubted, in view of the fact that such action was either taken upon joint request or under circumstances where consent was to be inferred, we do not believe that a refusal of such accommodation would have necessarily constituted reversible error.
We are uncertain that to grant appellee’s request would be to do justice. We feel certain that denial of the appellee’s request could not amount to error. It is denied.
Motion for rehearing is overruled.