The opinion
On March 8, 1893, appellees recovered a judgment in the District Court of Bexar County against the appellant of $994.90, for an alleged breach of warranty, from which judgment Maverick appealed to this court, where the appeal is now pending. The appellees come here and confess that one of appellant's assignments of error is well taken, and move the court to reverse and remand the cause for a new trial, in order to allow them to make certain proof necessary to support a judgment which they failed to make in the court below. The motion is resisted by appellant, who contends that, as the case was tried by the court without a jury, it is the duty of this court to render such judgment as the court below should have rendered.
Section 36, page 31, Called Session Twenty-second Legislature, provides, that "When the judgment or decree of the court below shall be reversed, the Court of Civil Appeals 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 damages 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 in the court below." Cases are tried by inferior courts with a view to this statute, and with full knowledge on the part of litigants that, if the judgment rendered should be reversed on appeal, it is the plain and unequivocal duty of this court to render the proper judgment, without the case should fall within the exception. Under this statute the parties to a suit, as the result of the trial, have the right to a proper judgment. And the party who was entitled to it in the court below can not be deprived of it by its failure to do its duty; but can demand the right on appeal, and can not then be deprived of it by a confession of error on the part of his apparently successful adversary, without the court's passing on the merits of the case.
The motion is overruled, and leave granted appellees to withdraw their confession of error.
Motion refused. *Page 676
ON MOTION FOR REHEARING.