
    JONES v. FIRST NAT. BANK OF GAINESVILLE.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1913.)
    1. Bills and Notes (§ 537*) — Bona Fide I-Ioldeb — Question fob Jury.
    Where plaintiff states the note sued on was indorsed to it before maturity, and produces abundant and strong proof to sustain it, and defendant introduces testimony tending to show that another was in possession and was the owner of it a few weeks after its maturity, when plaintiff claims to have been its owner, there is more than a scintilla of evidence for defendant on the issue, so as to require its submission to the jury.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.*]
    2. Appeal and Error (§ 1001*) — Trial (§ 139*) — Taking Case from Jury.
    Where there . is more than a scintilla of evidence for each party on the issue, the case must go to the jury; and, in such a case, before a verdict has been rendered neither the trial nor appellate court has power to determine that a verdict for one of the parties would be so against the weight and preponderance of evidence as to require it to be set aside.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001;* Trial, Cent. Dig. §,§ 332, 333, 338-341, 365; Dec. Dig. § 139.*]
    Appeal from Cooke County Court; C. R. Pearman, Judge.
    
      Action by tbe First National Bank of Gainesville against H. R. Jones. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Stuart, Bell & Moore, of Gainesville, for appellant. Davis & Davis, of Gainesville, for appellee.
   HENDRICKS, J.

The appellee, tbe First National Bank of Gainesville, Tex., sued appellant, H. R. Jones, in tbe county court of Cooke county, upon a promissory note, executed by appellant, payable to tbe order of tbe bank of Myra, a partnership, for tbe sum of $639.65; said note dated July 15, 1910, and maturing July 1, 1911, claiming to be tbe assignee and owner of same, by indórsement from tbe Myra bank. Tbe appellant answered under oatb, alleging payment of tbe note to tbe bank of Myra, and further that tbe First National Bank of Gainesville acquired said note after maturity, and tbe county judge peremptorily instructed tbe jury in favor of tbe appellee bank, for tbe full amount of tbe note.

As to tbe propriety of tbe peremptory instruction, the appellant contends that there was sufficient evidence tending to prove tbe ownership of this note in another, at a time totally inconsistent with the claim of ownership of tbe appellee, and that such testimony in opposition tends to prove that tbe Gaines-ville bank did not acquire the note before maturity, but its acquisition was necessarily after maturity, letting in tbe plea of payment interposed by appellant to cancel tbe paper. Tbe appellee exhibits a blank indorsement upon the note and testimony by tbe president, vice president, and assistant cashier, to tbe effect that tbe note was acquired before maturity with a blank indorsement upon tbe paper, dated July 16, 1910, one day after tbe execution of the note, with other testimony tending to prove its ownership during tbe period claimed. The principal evidence of tbe appellant is that one Harris, during September, 1911 (tbe note maturing July 1; 1911), was in possession of said note, claiming to own it, and exercising acts of ownership over tbe same and was attempting to trade and sell tbe paper as tbe owner, which, if true, appellee could not have acquired tbe note at tbe time claimed.

The Supreme Court of this state has said, in tbe case of Washington v. M., K. & T. Ry. Co., 90 Tex. 321, 38 S. W. 766: “We recognize tbe rule that, in order to require an issue to be submitted to tbe jury, there must be something more than a scintilla of evidence. There must be evidence sufficient to warrant a reasonable belief of tbe existence of tbe fact which is sought to be inferred.” And tbe Supreme Court of Illinois says that “a mere scintilla of evidence, if it means anything, means tbe least particle of evidence — evidence which, without other evidence, is a mere trifle.” Offut v. World’s Columbian Exposition, 175 Ill. 472, 51 N. E. 651. Tbe only other rule we know of to assist us as to tbe sufficiency of evidence to warrant a reasonable belief of tbe existence of a fact which is sought to be inferred, and advances tbe value of testimony from tbe scintilla to tbe probative stage, and increases its significance sufficiently as worthy of proof of an issue of fact, is tbe rule of our Supreme Court, enunciated in tbe Lee Case, 89 Tex. 588, 36 S. W. 63 (stated by us conversely to tbe statement there), that, where tbe evidence is of such character that there is no room for ordinary minds to differ as to tbe conclusion to be drawn from it, it ceases to be a question of fact for tbe jury. Hence tbe question here, whether tbe testimony has advanced from tbe nebulous condition of tbe scintilla status to the more concrete one proving a litigated fact, and considering both rules, is determinable by tbe opposition of facts attempted to be sustained. Tbe appel-lee says, “Tbe note was indorsed to me before maturity,” and produces abundant and strong proof to sustain it; tbe appellant introduces testimony tending to show that another was in tbe possession and was tbe owner of said note a few weeks after tbe maturity of same and at a time when appel-lee so strongly and vigorously claims to have owned tbe paper-two inconsistent facts, tbe deduction from each tending to prove contrary issues, which we clearly think tbe jury should have decided.

Tbe appellee earnestly contends that the preponderance of tbe testimony, and tbe great weight of tbe same, is so strong in bis favor as to require tbe trial court to set a verdict aside if found against him. Believing that there is some testimony more advanced than tbe scintilla stage, which ordinary minds might differ upon, as to tbe ownership of tbe note in September, 1911, we would rather for tbe trial court to pass upon that question if a jury were to decide against tbe appellee before we deprive the appellant of a jury trial. We have searched tbe authorities for a precedent for tbe exercise of power inherent in this court to determine a case by making an original determination of a question of fact, where tbe trial court has taken tbe ease from tbe jury — where tbe evidence is in a similar condition as in this record, assuming that it strongly preponderates in favor of tbe appellee. This is different, however, from a case of a total lack of evidence, of insufficient evidence, or evidence in tbe scintilla class, in which condition it is tbe duty of this court to render such judgment as tbe trial court should have rendered. And we are unable to find such an authority, and tbe tendency of tbe bolding of tbe Supreme Court is against tbe position. Choate v. Railway Company, 91 Tex. 406, 44 S. W. 70. Tbe Supreme Court says that it was never intended to substitute tbe judgment of tbe appellate courts upon tbe facts of a case in place of that of tbe jury, and to make the determination of these courts final. Of course, where the verdict of a jury is so manifestly against the strong preponderance and the weight of the testimony as to indicate that it was the result of an improper motive, and not a determination of the case, based upon the facts, we have the power to set it aside, even if the trial court fails in that respect; but, unless we are affirming the judgment or verdict of a case upon appeal, we have no power to make an original determination of a question of fact, where the evidence is sufficient to put it to the jury, and it is only thereafter that a trial court, or an appellate court, can correct what a jury has improperly decided.

The case is reversed and remanded.  