Being unable to concur with my Associates as to the disposition now made of this case, I refer to my former opinion as indicating some of the reasons for my dissent. While it is true that appellant's assignments of error do not specifically and in detail controvert each and every finding of the trial court, they do present the proposition that the verdict is not sustained by the testimony, and I believe that proposition is sound. Appellee put in evidence the deposition of Wittliff and relied mainly upon his testimony. He swore positively that appellant never had any interest in the Peacock bed brace, knew nothing about the transaction between him, the witness, and appellee until after it occurred, and that his only connection with the property obtained by the witness from appellee *Page 60 was that the witness transferred to appellant land notes received from appellee to secure appellant's bank for a loan of money. Appellant's testimony was to the same effect, with the additional statement that, after he heard of the trouble between appellee and Wittliff, he returned the note to Wittliff's attorney and demanded and received other security. The facts and circumstances relied on to overcome the distinct and positive testimony referred to do not appear to me to be any stronger than those relied on in Joske v. Irvine, 91 Tex. 583, 44 S.W. 1063, where our Supreme Court said: "The broad and wise policy of the law, formed in and descending to us through the crucible of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the great responsibility of determining, as a question of law, whether the testimony established more than a mere surmise, suspicion, or inference." It was held in that case that it did not, and I believe it should be so held in this case. I adhere to the statements and conclusions announced in our former opinion.
It is believed that the assignment which charges that the verdict is contrary to and not supported by the testimony authorizes this court to pass upon all the findings of the trial court, and to disregard those that are not sustained by testimony.