Neyland v. Brown
| Decision Date | 09 June 1943 |
| Docket Number | Motion No. 16100; No. 2454-8013. |
| Citation | 172 S.W.2d 89 |
| Parties | NEYLAND v. BROWN et al. |
| Court | Texas Supreme Court |
Our original opinion discloses that, with reference to "Items aggregating $34,175.37 not bearing the OK of Neyland," the jury made findings in favor of Brown & Root, but the trial court rendered judgment against them non obstante veredicto. The Court of Civil Appeals, 161 S.W.2d 833, reversed the trial court's judgment on this phase of the case and rendered judgment on the jury's verdict and we affirmed that portion of its judgment. In his second motion for rehearing Neyland invokes the rule which had become well established in this court prior to the effective date of the Texas Rules of Civil Procedure that, when an appellate court determines that the trial court erroneously entered judgment non obstante verdicto, such court should not render judgment on the verdict, but should remand the case to the trial court with instructions to enter judgment on the verdict and then afford the appellee an opportunity to present a motion for a new trial, and, if overruled, to appeal on the record made at the trial. McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442; Chalmers v. Gumm, 137 Tex. 467, 154 S.W.2d 640; Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146; Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224; Rodriquez v. Higginbotham-Bailey-Logan Co., 138 Tex. 476, 160 S.W. 2d 234.
As pointed out in Le Master v. Fort Worth Transit Co., supra, that rule was modified by Rule 324, Texas Rules of Civil Procedure, but this case was tried prior to the effective date of said rules and is therefore to be disposed of in accordance with the rule announced in the above cases. Neyland invokes that rule in his behalf, claiming here that, even if the trial court was in error in rendering judgment in his favor non obstante veredicto on those items, judgment should not have been rendered in the Court of Civil Appeals upon the verdict. He claims that, under the evidence, the award on those items was, at all events, excessive, and that he is entitled to be heard in the trial court with reference thereto. The unusual situation presented lies in the fact that we have ordered that much of the case be retried, and to follow literally the rule announced in the cases above cited and remand this particular phase of the case for further proceedings on the record heretofore made, while at the same time remanding other portions for a new trial, would create an impossible situation. An appeal after the next trial, if same should be prosecuted, would be upon two...
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