I concur in the affirmance of the judgment of the trial court for the reasons stated by the CHIEF JUSTICE in his opinion on motion for rehearing. The disposition is in accord with the general rule, that if the judgment rendered is the only judgment that could have been rendered under the pleadings and evidence in the case it will be affirmed, notwithstanding error in some of the legal conclusions of the trial court, 3 Tex.Jur. p. 1246, Sec. 873; also that the erroneous sustaining of a demurrer to a part of a plea or answer is harmless where the defendant receives the same benefit or advantage under his general denial. 5 C.J.S., Appeal and Error, § 1687, p. 858.
Not only does the evidence negative any right or title of appellants by grant or contract or by unlawful production to the one-eighth royalty in oil produced from wells 5 and 8, but appellants' answer affirmatively negatives any such right or title by the allegation "that on November 28, 1938 plaintiff Alfred Nollkemper acquired" the twenty-four acres on which wells 5 and 8 are located, and by paragraphs seven and eight, the gist of which is that the production from wells 5 and 8 is in accordance with the Rules and Regulations of the Railroad Commission. Had the exceptions been overruled and appellants permitted to introduce proof of every fact alleged in paragraphs seven and eight, the judgment must necessarily have been the same.
Under Rule 434, Rules of Civil Procedure it seems to me that there must necessarily be a distinction between the erroneous sustaining of a general demurrer to a petition under Rule 90, Rules of Civil Procedure, which would require a reversal if assigned as error, as indicated in Jones v. Ross, Tex. Sup., 173 S.W.2d 1022, and the erroneous sustaining of a so-called special exception which, in effect, is a general demurrer to specific paragraphs of an answer which allege no defense or ground for affirmative relief where the record affirmatively discloses that no defense or ground for affirmative relief exists. This view finds support to some extent in Kansas Life Ins. Co. v. First Bank of Truscott, Tex. Civ. App. 47 S.W.2d 675, affirmed 124 Tex. 409, 78 S.W.2d 584.