Nelson v. Downtain

268 S.W. 731, 1925 Tex. App. LEXIS 1428

• Court: Texas Commission of Appeals
• Decided: February 9, 1925
• Docket: No. 452-3958
• Status: Published

Opinion

HAMILTON; J.

Upon consideration of the motion for rehearing in the above styled and numbered cause, we have come to the conclusion, after careful consideration, that plaintiffs’ attempted plea of mutual mistake, while meager, defective, and weak, is not so defective, when there is imported into it the coloring necessarily given to that particular portion of plaintiffs’ plea by other parts of the petition, as to require a judgment reversing and rendering as recommended in our original opinion.

We therefore recommend that .the motion for rehearing be granted, that the judgment reversing the judgments of the trial court and Court of Civil Appeals and rendering judgment for plaintiff in error be set aside, and that judgment be entered reversing the judgments of the trial court and Court of Civil Appeals and remanding the cause for a new trial.

CURETON, C. J. Judgment heretofore entered is set aside, and judgment is entered reversing the judgments of the district court and Court of Civil Appeals, and remanding the cause to the district court, as recommended by the Commission of Appeals.