McConnell v. Wall

5 S.W. 681, 67 Tex. 352, 1887 Tex. LEXIS 882

Opinion

Station, Associate Justice.

This cause, having been tried without a jury, was before this court at the last term, and is reported in 65 Texas, 397.

The rights of the parties were then determined, except as to one item, in reference to which the evidence was not sufficiently full to enable this court to render the proper judgment.

The judgment was reversed and the cause remanded, with instructions to the court below to ascertain when Houston county received certain money on an insurance policy which it held, and then to render a judgment in accordance with the opinion.

It became necessary to ascertain when the insurance money was received in order that the commissions to which the appellant was entitled, as county treasurer, miglit be known, he being entitled, to a certain date, to two and one-half per cent on moneys received, and only to one-half of that sum after that date. When the cause was called for trial after being remanded,' it was admitted that the insurance money was received at such time as to entitle the appellant to the higher commissions, but he insisted on opening the whole case and having a trial by a jury, which was refused. This is assigned as error.

The court below did not misunderstand the former judgment of this court, and correctly refused to re-open the entire case. If the appellant was of the opinion, when the judgment of this court was entered at the last term, that, on another trial he could make proof that would show his right to be other than by the record it then appeared, he should have asked this court so to reform its judgment as to give him an opportunity to do so. This he did not. To have given him a jury trial would have been useless, for every fact affecting his right which could be * inquired into was admitted to be as he claimed it to the utmost extent.

There is no error in the judgment, and it will be affirmed.

Affirmed.

Opinion delivered February 11, 1887.