On Motion for Rehearing.
In the first part of our opinion on original hearing we said:
“It was the contention of Lubbock county that the line heretofore supposed to be the true boundary was not such. * * ⅜ ”
The line referred to in that statement was the one established by Ira Millington. Ap-pellee now cites additional testimony to show that we were incorrect in our further statement, in effect, that until about 2 years prior to the institution of this suit no controversy arose between the officers of the respective counties relative to the question whether or not the Millington line was the true boundary line between those counties. A part of the testimony so referred to is that of the witness Elynn, who served as sheriff and deputy sheriff of Lubbock county for some 10 years prior to the trial of the suit, and was to the effect that during that time there were disputes between himself and the officers of Hale county relative to the territory which was within the jurisdiction of the respective counties. But he expressly said further that he did not know the location of the Millington line, and that the same was never pointed out to him. Further testimony of Judge Brown is also pointed out, to the effect that while the witness was county judge of Lubbock county the location of the boundary between the two counties was not involved in any aotion by the commissioners’ court of Lubbock county in the establishment of public roads or justice or “commissioners’ road precincts.”
Such testimony at best was of a negative character only, and in our opinion in no manner conflicts with the facts found by us as shown in our original opinion. Nor do we think that the fact that in the state abstract records there was some confusion with respect to whether or not certain surveys were in one county or the other tend in any material respect to show that the Millington line was not recognized by the commissioner of the general land office as the true boundary line between the two counties; since it is evident that such confusion is referable to the correct location of those surveys and not to the location of the Millington line, which was of record in the land office and was definite and specific.
Appellee earnestly insists, in effect, that as appellant did not move to set aside *683the findings of the jury upon special issues before judgment was entered thereon, it waived the right to complain that those findings were not supported by the evidence; reference being made specially to the finding by the jury in answer to special issue No. 3, to the effect, that prior to the enactment of article 1400 of the Revised Statutes the Ira Millington line was not recognized by the officers of the two counties as the true boundary between those counties-. In support of that contention the following decisions are cited: Essex v. Mitchell, 183 S. W. 399; Blackwell v. Yaughn, 176 S. W. 912; Scott v. E. & M. Nat. Bank, 66 S. W. 485; T. & N. O. Ry. Co. v. Weems, 184 S. W. 1103'; Smith v. Hessey, 134 S. W. 256. As we construe them, each and all of those decisions go no further than to hold that an assignment to the action of the court in rendering a judgment upon special findings by the jury because such findings are not supported by the evidence cannot be sustained, by reason of the fact that by article 1990, Vernon’s Sayles’ Texas Civil Statutes, such findings cannot be disregarded, but must constitute •the only basis upon which any proper judgment can be rendered, even though the findings upon which the judgment is based are not supported by the evidence, as announced in Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881, and Waller v. Liles, 96 Tex. 21, 70 S. W. 17. Article 1990 implies the authority of the trial court to set aside such findings before any judgment is rendered thereon and is to the effect that the court must render a judgment upon those findings unless the same are set aside, but we know of no decision to the effect that the losing party cannot, in his motion for new trial after (judgment is rendered, attack such special findings of the jury for lack of evidence to support them. In the decisions cited by the appellee it appears that no attack was made upon the findings of the jury as being unsupported by the evidence, but the attack was upon the judgment rendered upon the findings for lack of evidence to support such findings.
Article 1990 denies authority in the trial court to render a judgment non obstante veredicto. In that sense and to that extent only does the statute make the findings of the jury upon special issues conclusive upon the court. In the same sense article 1986, which is also invoked by appellee, makes such findings conclusive upon the parties; but not more so than is a general verdict which by article 1994 is required to be made the basis of the judgment. To give to article 1986 a strict literal construction would be to deny the parties the right to attack the verdict at any time or upon any grounds.
By article 1612 it is provided that whenever a motion for new trial is filed the errors therein assigned shall constitute the assignments of error on appeal. Rule 24 for Courts of Civil Appeals (142 S.'W. xii) provides that assignments of error, not distinctly set forth in the motion for new trial in the .trial court shall be considered waived. Rule 71a for district and county courts (145 S. W. vii) provides that a motion for a new trial shall be filed in all cases where parties desire to appeal or prosecute a writ of error from a judgment rendered in those courts, except when an error complained of is fundamental, and except in such cases as the statutes do not require such a motion. By article 2023 the losing party is allowed two days after rendition of a judgment within which to file a motion for a new trial. In view of those statutes and rules, it seems clear to us that, in his motion for new trial after judgment rendered, a losing party has the same right to attack -the special findings by a jury upon which the judgment is rendered, as he has to attack a general verdict, and upon appeal to complain of the action of the trial court in overruling said attack.
The record in the present suit shows that after the conclusion of the evidence and argument, and before the special issues were submitted to the jury, appellant requested a peremptory instruction directing a verdict in its favor, which was refused, and to which refusal appellant duly excepted. The record further shows that after the rendition of the judgment appellant, in its motion to set aside the judgment and grant a new trial, made a direct attack upon the finding of the jury in answer to special issue No. 3 upon the ground that there was no evidence to support it, and that the uncontradicted evidence was contrary thereto.
With the foregoing observations appellee’s motions for further findings to certify to the Supreme Court and for rehearing are overruled.