Donada v. Power

On Motion for Rehearing and to Modify Order. We are asked by appellee to modify our judgment, reversing the judgment of the trial court and remanding the cause generally, so as to affirm that part of the judgment of the district court relating to the appellee's suit for rent for the 37 acres of land, being the 20 acres described in the written contract and the 17 acres taken by appellant under the provisions of said contract not later than January 1, 1908, as found by the jury.

We conclude that the request should be granted, upon the authority of the following cases: Marshall v. City of San Antonio, 63 S.W. 138; Shirley v. Railway, 78 Tex. 131, 10 S.W. 543; Cooper v. Lee, 75 Tex. 114,12 S.W. 483; Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347, 55 S.W. 119,56 S.W. 330; McConnell v. Wall, 67 Tex. 352, 5 S.W. 681; Id., 65 Tex. 397; Nona Mills Company v. Jackson, 159 S.W. 932; rule 62a for Courts of Civil Appeals (149 S.W. x).

The judgment of the trial court is reversed, and the cause remanded, with instructions to the trial court to try the issues in the case, other than the one relating to rent sought to be recovered for the 37 acres of land, on which the findings made upon the trial below are to be held and deemed conclusive, and so taken in entering the final judgment to be rendered in the case upon trial of the other issues.