On Rehearing.
In deciding this case we considered carefully the question of whether there should be a remand or a rendition of final judgment. In the opinion, however, there was no discussion of the point. We were in doubt of. our being able to add anything of material benefit to the great volume that has been written on the subject. In view, however, of appellant’s earnest and able argument contending that the case should be remanded for another trial, we have decided to state, as briefly as we may, the reasons for our said former action. This will involve construction of statutory provisions prescribing our duty, as well as decisions of the courts on the subject.
In the investigation we have examined hundreds of decisions and have read each case to which a reference indicated that it would probably be helpful. The cases may be classified into four groups: (1) It appears there are a great many decisions to the general effect that when an appellate court, in this state, reverses the judgment of a trial court, final judgment will be rendered, if the case appears to have been fully developed, and a remand will be ordered if it does not appear that the case has been fully developed. (2) A great many other decisions seem to recognize as the determinative factor to be considered in rendering judgment or ordering a remand the question of whether, -in the opinion of the court, justice will be better subserved by remanding. (3) Perhaps as many other decisions appear to make the same question turn upon whether the record shows that the case has been *735tried on a wrong theory; ordering a remand if it so appears. (4) Still other decisions recognize the determinative question to be whether it appears from the record that any matter of fact is necessary to be ascertained, or whether the damage to be assessed or the matter to be decreed is uncertain.
It is significant, we think, that we have been unable to find any case which calls attention to the fact that there is one statute upon this subject having no reference to the Supreme Court, which prescribes the duty (and therefore the power) of courts of civil appeals, and another statute, materially different in some of its provisions, having no reference to courts of civil appeals; which prescribes the duty (and power) of the Supreme Court. Such statutory provisions are R.S.1925, arts. 1856 and 1771. Said article 1856, applying exclusively to courts of civil' appeals, provides: “When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.” Article 1771, applying exclusively to the Supreme Court, provides: “In each case, the Supreme Court shall either affirm the judgment, or reverse and render such judgment as the Court of Civil Appeals should have rendered, or reverse the judgment and remand the case to the lower court, if it shall appear that the justice of the case demands another trial.” (Italics ours.) It is obvious from a reading of these provisions that the above italicized clause of article 1771 purports to confer upon the Supreme Court a power which the mandatory terms of said article 1856, by clear and necessary implication deny to courts of civil appeals. Article 1856 is just as mandatory wherein it directs a court of civil appeals to render such judgment as the court below should have rendered as it • is that, when the exceptional circumstances exist, it shall remand the case, and vice versa. In other words, the imperative command of the statute to courts of civil appeals is that they shall “render such judgment or decree as the court below should have rendered” unless “it is necessary that some matter of fact be ascertained or- the damage to be assessed or the matter to be decreed is uncertain.” Its equally imperative command is that, if there be “some matter of fact to be ascertained or the damage to be assessed or the matter to be decreed is uncertain,” the cause “shall be remanded for a new trial.”' There would seem to be no room for a difference of opinion that, if this statute be valid, it vests no discretion in courts of civil appeals as to rendering final judgment or remanding a case, except, of course, such as is involved in determining whether or not there be “some matter of fact to be ascertained or the damage to be assessed or the matter to be decreed is uncertain.” It was so held in Sovereign Camp, W. O. W. v. Patton, 117 Tex. 1, 295 S.W. 913. In so holding the Supreme Court in effect overruled contrary dicta of that court in Patrick v. Smith, 90 Tex. 267, 38 S.W. 17, 21, wherein it was said: “If there be no evidence to sustain a judgment upon an issue material to a recovery, the appellate court may, in its decretion, render judgment for the appellant, or remand the cause for a new trial.” (Italics ours.) No question of discretionary power was before the court. Upon that question, which was presented for decision in the Patton Case, supra, the court said: “Their proper discretion consists in their right to determine when the exception to the general statutory rule applies, and not in their right to apply the rule, or not, as they deem best, where the •record is such as to clearly bring the case within the general terms of the statute.”
But looking to article 1771 in so far as it relates to the subject under consideration, it clearly commands, the Supreme Court to do one of two things. It therefore vests a discretion to do either. Its command is that the Supreme Court shall “reverse and render such judgment as the Court of Civil Appeals should have rendered,” or it shall “reverse the judgment and remand the case to the lower court, if it shall appear that the justice of the case demands another trial.” It cannot be said that the discretionary power thus granted includes the power, upon reversing the judgment of a court of civil appeals, to render final judgment in any case unless the court of civil appeals should (and therefore could) have done so. That being true, the effect is to deny authority to the Supreme Court upon reversing the judgment of a court of civil appeals to render final judgment in any case wherein it is necessary that “some matter of fact be ascertained or the damage to be *736assessed or the matter to he decreed is uncertain.” As already said, a court of civil appeals could not properly render final judgment when such conditions exist, and, the power of the Supreme Court to render final judgment being limited to the rendition of such judgment as the court of civil appeals should have rendered, could not do so. It therefore appears that the above italicized clause of said article 1771 is meaningless, unless it vests a discretion in the Supreme Court which is not given to courts of civil appeals.
If so far we are correct, then it necessarily follows that a court of civil appeals when it reverses a case wherein it is not necessary that “some matter of fact be ascertained and the damage to be assessed or the matter to be decreed” is not uncertain, cannot properly remand the case simply because it may appear that the ends of justice will better be subserved thereby. The Legislature has itself, in effect, declared that the ends of justice will be better subserved by rendering the judgment which the trial court should have rendered if the record shows what that judgment should have been. It should be regarded as elementary that when the law speaks discretion ends.
Many of the decisions giving as a reason for remanding a. case by a court of civil appeals that it appears that the ends of justice will better be subserved by such action may, we think, be accounted for on the ground that by oversight the above-mentioned difference between the power of the Supreme Court and courts of civil appeals was not considered, thereby inducing the erroneous assumption that decisions of the Supreme Court and Commission of Appeals relating to the disposition of causes reversed by the Supreme Court were ap^ plicable to the disposition of causes reversed by courts of civil appeals. Correct disposition was made of many of such cases because there was some matter of fact to be ascertained or the damage or matter to be decreed was uncertain, but the reasons assigned were misleading, and we cannot escape the conviction that a wrong disposition was made of some of the cases.
The decisions wherein it was given as the reason for remanding a case that it was tried on a wrong theory may or may not have made a correct disposition of the several cases.. That depends upon whether or not the statutory exceptions to the duty to render judgment existed. It is doubtless true that in most cases tried on a wrong theory a court of civil appeals, upon reversing the judgment, cannot render final judgment because of the necessity that some matter of fact be ascertained, or the damage or matter to be decreed is uncertain. It would be the better practice, we think, and far less confusing to assign as reasons for remanding, one or more of the exceptional conditions upon which the statute requires such disposition. If that were done, there would be no implication of a discretionary power in courts of civil appeals which does not exist.
Much of what has been said in the preceding paragraph is likewise true of those decisions which have assigned as the reason for rendering final judgment or remanding a case that it appears or does not appear that the case has been fully developed. It is no doubt true that in most cases it was only meant that one or more of the statutory exceptions- to the duty to render judgment did or did not exist. It is needless to say, in- view of what has already been said, that in our opinion those decisions, if any, not susceptible to such an interpretation, are contrary to the plain provisions of the law.
No proposition of law is more elementary, or of less questionable soundness than that, when action of a government agency is dependent for validity upon a grant of power, and such power he granted upon plainly prescribed conditions, courts have no authority to add other and different conditions, or to sustain an exercise of the power in disregard of the conditions. We are therefore forced to conclude that of all the decisions in three of the four classes mentioned, wherein remands have been ordered by _ courts of civil appeals on the ground that the case was not fully developed, or was tried upon a wrong theory, or that the ends of justice would thereby better be subserved, only those cases were correctly determined wherein there was some matter of fact to be ascertained, or the damage to be assessed, or -the matter to be decreed was uncertain.
Under varying circumstances the big problem is to determine when the record shows a necessity that some matter of fact be- ascertained or that the damage to be assessed or the matter to be decreed is uncertain within the true meaning of the statute.
*737We think the instant case is not one which under the statute we have authority to remand for a new trial. We have held in response to a cross-assignment of error that the trial court should have rendered judgment dismissing the case. This that court could not have done, unless there was a total absence of evidence showing (1) that the employer or insurer had knowledge of the injury within 30 days from the time it was received, or (2) was given notice of such'injury within that time. There being no such evidence, every matter of fact was determined necessary to require a judgment for the defendant. No assignment of error presented to this court and sustained by us has the effect of unsettling such determination of the facts.
The only purpose which a remand could serve would be to permit the plaintiff by amendment of his pleadings to allege the existence of good cause for failure to give notice of his injury within 30 days from the receipt thereof, and the opportunity to establish that issue by evidence. The absence of such issue from the pleadings would not have the effect of rendering the pleadings insufficient to support a judgment for the plaintiff had same been properly supported by evidence and the issues found in his favor. Had the pleadings been insufficient to support a judgment and this court had so held, there would thereby have resulted an unsettling of the determination of the facts necessary to enable this court to render final judgment. As it is based upon proper pleadings and unchallenged findings, the court should have rendered judgment for the defendant, and the duty of this court to do so is plain.
It is implied in what is said above that the duty and power of a court of civil appeals to render final judgment or remand for a new trial may depend upon the nature of the assignments of error, cross-assignments of error, or fundamental errors, and the action of the court upon same. We deem it conducive to a better understanding of our views to so state expressly. That such is true is well illustrated in words of the Supreme Court as follows: “Since the evidence admitted failed to show a right in plaintiff to recover the land, the judgment of the district court should have been that he take nothing; and such is the proper judgment for this court to render, unless, by his cross assignment of error, defendant in error has shown a reason why the cause should be remanded.” Willoughby v. Townsend, 93 Tex. 80, 53 S.W. 581, 582; Arnold v. Ellis, 20 Tex.Civ.App. 262, 48 S.W. 883; Farmers’ & Stockmen’s Bank v. Sweaney (Tex.Civ.App.) 285 S.W. 930. Thus it is seen that, when a court of civil appeals reverses a judgment, the necessity that some matter of fact be ascertained, or the fact that the damage to be assessed, or the matter to be decreed is uncertain, may result solely from the court’s sustaining a cross-assignment of error.' We cannot now think of a state of facts where a court of civil appeals may sustain an assignment of error that the. trial court erred in refusing a peremptory instruction for the appellant and wherein there is no cross-assignment of error by the appellee and no fundamental error against him appears from the record, and yet the court of civil appeals be authorized to remand the case for another trial.
It is therefore our opinion that the motion for rehearing should be overruled, and it is so ordered. .