On Engbrock’s Motion for Rehearing.
Engbrock challenges our finding that “he offered no proof of what, if anything, he actually paid in consideration of his execution deed, or of what, if any, credit was made therefor upon the judgment.”
Engbrock occupied the position of a plaintiff in his cross-action seeking to subject the property to his claim under the theory of subrogation. It was therefore essential for him both to allege and prove the amount he paid at the execution sale. He did allege that he paid $300.
The following constitutes the entire record showing regarding the proof upon this issue:
It was admitted that the bank recovered judgment against A. Haidusek, “and that no part of said judgment has been paid, except the sum of $323.25 as of date December 7th, 1926,” and that there was a balance owing upon said judgment of $690 besides interest. It was further admitted that “Eng-brock, on November 7th, 1926, purchased at a sheriff’s sale under an execution” upon the bank judgment “one-half undivided in-terest in and to lot 318, in block 38.”
The bank’s disclaimer- alleged “that it neither owns, claims, nor asserts any right, title, interest or right of possession in or .to the premises described” in plaintiff’s petition.
This record showing went no further than that the bank’s judgment was valid and unpaid, except to the extent of a credit of $325.25 as of December 7, 1926, the date of Engbrock’s admitted purchase at execution sale, for a sum not stated in the admission or agreement, but alleged by him in his pleadings to be $300. The parties who worded the admission or agreement seem to have studiously avoided a statement as to what portion of the $325.25 Engbrock paid. Nor is this omission supplied elsewhere in the record so far as we have been able to find.
It is immaterial that the court rested its judgment upon another theory; namely, that A. Haidusek’s homestead property passed at his death to his heirs free from the claims of community creditors. The judgment was none the less correct as to Engbrock’s plea of subrogation for failure to prove an essential element of recovery thereunder, namely, the amount, of his claim.
Engbrock cites the line of cases which hold that, when a judgment is reversed in the appellate court, the latter will not render judgment for the opposing party, for failure to prove some essential fact which might be developed upon another trial, but will remand the cause so as to supply the evi*523dence which is wanting. This doctrine has been frequently applied with reference to omissions both in pleading and evidence. See the recent case of Western Union Tel. Co. v. Speed (Tex.Civ.App.) 93 S.W.(2d) 580 (error dis.). It has, however, no application to a correct judgment, the rule as to which is thus stated in Simmons v. Dickson, 110 Tex. 230, 213 S.W. 612, 218 S.W. 365, 366;
“We would not be warranted in reversing a. correct judgment to enable the losing party here to adduce proof which he should have offered in the first instance. Harris v. Shafer, 86 Tex. 314, 23 S.W. 979, 24 S. W. 263.”
The motion is overruled.
Overruled.