The opinion
On Motion for Rehearing.
Appellant’s counsel has filed a very able and exhaustive motion for rehearing, and has convinced us that we reached the wrong conclusion in affirming the case originally.
If the verdict of the jury were binding on the court, there can be no doubt but that the improper testimony of Dewey Puryear and of Mrs. Emma Lipscomb as to the dying declarations of Mrs. Joseph would require a reversal of the) case. Their findings were based, in part at least, upon inadmissible testimonyi We do not recede from our former conclusion, however, that the court was not necessarily bound by the jury’s finding of fact. Clearly, we think, he could have rejected their fihdings in toto, had he seen fit, and could have reached an independent verdict contrary to what the jury found. In his judgment he recited an independent finding, stating that it accorded with the findings of the jury. Counsel calls our attention to the language in the decree, however, which leads us to believe that, even if the court did not accept the findings of fact made by the jury and adopt same as his own, he was strongly influenced thereby in reaching the conclusion, he did reach. The language of the decree-referred to is as follows:
“The defendants filed in this court their motion that the court receive and accept the answers of the jury to said special issues as determinant of the facts relating to the material issues involved in this cause. * * * The court granted the said motion so made by the said defendants J. M. Puryear and Nancy Puryear, and accepted the answers and verdict of the jury * * * as determinant of the facts of this case, and, in accordance therewith and with the judgment of this court, it is further ordered, adjudged and decreed, etc.”
In trials before the court without a jury, the aggrieved party can require the court to file his findings of fact and ascertain whether the court considered incompe *978 tent evidence in arriving at Ms verdict. Failing to do so, tlie rule is well established that if there is sufficient competent evidence to support his judgment, it will- he presumed that the court disregarded the incompetent evidence. Such is the rule of practice. Railway Co. v. Startz, 97 Tex. 171 , 77 S. W. 1 . Numerous authorities on this point are set out in volume 2, S. W. Rep. Digest, at page 1565. In the instant case no request was made for findings of fact and conclusions of law. We are not prepared to say, however, that the trial of the facts to a jury did not induce the failure to request such findings, and since the court had already overruled appellant’s objection to the presence of the jury in the case, he may have reasonably concluded that he was not entitled to have independent findings of fact made by the court. However that may be, the language used by the court in his judgment, indicating that he accepted and adopted the findings of the jury which were arrived at with improper evidence before them, and which in a jury trial would require a reversal and the fact that he admitted the improper and damaging testimony to the jury as competent, we think is sufficient to overcome the presumption, otherwise obtaining, that the court did not himself consider the improper testimony in arriving at his verdict. On the other hand, it rather indicates, we think, that he did consider it. If the court did consider the objectionable testimony in arriving at his verdict, the error requires a reversal. Under all the circumstances of the ease before us as disclosed by the record, we have, upon reconsideration, reached the conclusion that the presumption that the trial court did not consider the incompetent testimony has been overcome. Appellant’s motion is therefore granted, the judgment of the trial court is reversed, and the cause remanded for another trial.
Motion granted.