National Automobile & Casualty Insurance Co. v. Webb

On Motion for Rehearing

After the original opinion was handed down appellees O’Dowd & O’Dowd filed a motion which they, designate as a remittitur and substantially state in such motion that they are willing to abide by the agreement made by them insofar as it affects their interest in the judgment and accept the sum of $616.66 in full settlement of their share of the judgment originally entered in the trial court. They asked this court to modify the judgment originally entered in the trial court to this effect and affirm the judgment of the trial court.

As pointed out in the original opinion, there was no testimony tendered in the trial court and there is no statement of facts here. It is true that we have permitted counsel in oral argument, both on original hearing and on motion for rehearing, to state what purports to be the facts from each point of view, but as pointed out in the original opinion, “The Court of Civil Appeals has no jurisdiction to determine original questions of fact brought to such court on appeal. See Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, points 3 and 5.” It follows that appellees’ motion in this behalf must be overruled.

We have again given much consideration to appellant’s contention that we reverse and remand the cause without instructions in order that it can present its testimony as to its right to obtain equitable relief against the plaintiff Rufus Webb: Upon further consideration, it is our view that the ends of justice would be better sub-served by allowing the appellant to amend its pleadings and tender such proof as it may have to offer against Rufus Webb to-the effect that the $1,850 tendered in court by appellant was in full settlement and satisfaction of the judgment there rendered,, and without prejudice also to Rufus Webb’s right to void the agreement, if any, by pleading that his attorneys were without authority to bind him in the settlement and satisfaction of the judgment he had theretofore obtained. This, we believe, is in. harmony with the rule announced in Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, cited in our original opinion. Seo also opinion of our Supreme Court in Anderson v. Oldham, 82 Tex. 228, 18 S.W. 557; Price v. Logue, Tex.Civ.App., 164 S.W. 1048 (no writ history).

Accordingly, the judgment heretofore-entered by this court reversing and remanding this cause with instructions is hereby modified and the cause is reversed and remanded in accord with this opinion on motion for rehearing. Appellant’s motion in all other respects is overruled.