# Allen v. Denman > Court of Appeals of Texas · October 28, 1925 · 278 S.W. 899 URL: https://www.frixlaw.com/law-library/cases/9832112 ## Case - **Full name:** Allen v. Denman. - **Court:** Court of Appeals of Texas - **Decided:** October 28, 1925 - **Citations:** 278 S.W. 899 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Hall - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9832112 ## Opinion text On Motion for Rehearing. The appellee insists that this court erred in reversing and rendering the judgment, and insists that the Court of Civil Appeals is not authorized, in cases of this character, to reverse the judgment of the trial court based upon the jury’s findings upon special issues and render a judgment for the appellant. Under R. S. 1925, art. 1856, this court is authorized, when the judgment of the trial court shall be reversed, to proceed to render such judgment as the court below should have rendered, except when it is necessary that some matter of fact be ascertained on the damage 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. The appellee does not show that upon another trial it is possible for him to introduce any evidence which would strengthen his case. Though the trial court, in cases of a special verdict, must render judgment thereon or set it aside, a Court of Civil Appeals, under the authority of this article, on the reversal of a judgment, is authorized to render such judgment as the court below should have rendered. It appears that the issues have been fully developed by both sides, and that no different result would probably be reached by remanding the judgment. Aside from the evidence of Allen, we think the court should have directed a verdict, because the testimony of appellee’s witnesses, and all of the circumstances surrounding the transaction, left no room for a reasonable doubt upon the issue of the illegality of the contract. The facts in this case are much stronger, and more clearly demonstrate that the contract was illegal, than the facts in the case of Norris v. Logan (Tex. Civ. App.) 94 S. W. 123 , Id. 100 Tex. 228 , 97 S. W. 821 . That case was submitted to a jury. The Court of Civil Appeals reversed the judgment and dismissed the case, apparently for the reason that the pleadings of both parties showed that it was a gambling contract, and the Supreme Court, after a more detailed statement of the pleadings and evidence, affirmed the judgment of the Court of Civil Appeals. We think we have acted within the limits of the powers granted us by the above statute. Henne & Meyer v. Moultry, 97 Tex. 216 , 77 S. W. 608 ; Willoughby v. Townsend, 93 Tex. 80 , 53 S. W. 581 ; Arno Co-op. Irr. Co. v. Pugh (Tex. Com. App.) 212 S. W. 470 ; Houston Belt & Terminal Ry. v. Lynch (Tex. Com. App.) 221 S. W. 959 ; Cain v. Bonner, 108 Tex. 399 , 194 S. W. 1098 , 3 A. L. R. S74; Id. (Tex. Civ. App.) 149 S. W. 702 ; G. H. & S. A. Ry. Co v. Drew, 59 Tex. 10 , 46 Am. Rep. 261 ; Krause v. City of El Paso, 101 Tex. 211 , 106 S. W. 121 , 14 L. R. A. (N. S.) 582, 130 Am. St. Rep. 831 ; Id. (Tex. Civ. App.) 101 S. W. 828 . In the Norris-Dogan Case, supra, the defendant recovered upon a cross-action. The Court of Civil Appeals reversed the judgment and dismissed the case because the whole transaction was illegal, thus holding that neither party was entitled to recover. Obviously, that should not be the order here. *907 Denman recovered upon the check, which was given in settlement of a gambling debt. No recovery was asked or decreed for Allen. We think the proper order should be in such case that the judgment be reversed and here rendered that Denman take nothing, which is, in legal effect, the same as that rendered in the Norris-Logan Case. The motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9832112. Public record. Not legal advice.