J. M. ABOTT OIL CO. et al. v. SAN ANTONIO BREWING ASS'N, 141 S.W. 517

RAMSEY, J. The opinion of the Court of Civil Appeals for the Fourth Supreme Judicial District, as reported" in 129 S. W. 373, states the case with sufficient fullness and particularity, except that it does not distinctly appear from that opinion that the bond executed by the United States Fidelity & Guaranty Company, dated March 3, 1906, on which a recovery is sought, was not only not admitted in evidence, but was in terms by the trial court expressly excluded.

In this state of the record, it was improper that the Court of Civil Appeals should have rendered judgment in favor of the defendant in error against said United States Fidelity & Guaranty Company. This question was directly ruled in the recent case of Eidson v. Reeder, 101 Tex. 202, 105 S. W. 1113. In that case certain testimony was offered by the defendants, and was by the trial court excluded. Notwithstanding this, the judgment of the district court was, by the Court of Civil Appeals, reversed, and judgment (102 S.

W. 750) entered against Eidson and in favor of Reeder and Wiley for the land in controversy; the Court of Civil Appeals basing its judgment on the excluded testimony. In discussing this matter, Chief Justice Brown, who wrote for the court, said: “The authority of the Court of Civil Appeals to enter the judgment in this ease rests upon the following

article of the Revised Statutes: ‘Art. 1027. When the judgment or decree of the court below shall be reversed, the court 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 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 in the court below.’ The jurisdiction of the Court of Civil Appeals is appellate, and it has no power to find facts in the first instance. Patrick v. Smith, 90 Tex. 267 [38 S.

W. 17], In the ease cited, Chief Justice Gaines said: ‘It is not the province of the Court of Civil Appeals to determine a question of fact in the first instance; their jurisdiction is to set aside a finding by the court or jury, when contrary to the evidence, or against such a preponderance of the evidence that, in their opinion, it ought not to stand.’ The

article above quoted confers authority upon the Court of Civil Appeals to enter the judgment which the trial court should have entered upon the evidence presented and admitted, and there is no difference between cases tried by the jury and those tried before the judge. The trial judge in this case, after having excluded the evidence, could not have entered judgment based upon it, although it might be regarded as undisputed, for the simple reason that it could not form the basis of his judgment until it had been placed before the court in the proper manner.

Evidence cannot be said to be undisputed until, being before the court, it has not been denied or controverted, by the opposing party. The Court of Civil Appeals erred in entering judgment in this case, based upon evidence not admitted at the trial of the case, for which error the judgment must be reversed.”' Here the bond which formed the basis and foundation of the suit was by the district court excluded. However erroneous this ruling may have been, the Court of Civil Appeals was not authorized to base a final judgment on testimony which had been by the-trial court excluded.

It was, however, suggested in argument by the learned counsel for defendant in error-tliat, inasmuch as the execution of the bond was admitted in the answer of the guaranty company, and since, as they aver, the only matter in dispute was the legal effect and proper construction of same, the Court of Civil Appeals was authorized on appeal to assume its due execution, existence, and validity. This proposition cannot be sustained. In the case of Duncan v.

Magette, 25 Tex. 245, it was held that, if the allegations of the plaintiff's petition are put in issue by one of the defendant’s pleas, the plaintiff cannot give in evidence the allegation of another of defendant’s pleas, in order to maintain his cause of action. Silliman v. Cano et al., 90 Tex. 647, 39 S. W. 559, 40 S. W. 391; Bauman v. Chambers, 91 Tex. 111, 41 S. W. 471. The judgment of the Court of Civil Appeals, therefore, in so far as it renders judgment in favor of the San Antonio Brewing Association against the United States Fidelity & Guaranty Company, will be reversed.

We feel, in view of the entire record, that we are not only not called on to discuss and adjudicate the other questions raised on the appeal, but that it would be premature, if not improper, to undertake to do so. To the extent as stated above, the judgment of the Court of Civil Appeals is reversed, and the cause will he remanded.