
    HALL MUSIC CO. v. ROBINSON et al.
    (No. 1037-4946.)
    Commission of Appeals of Texas, Section A.
    Jan. 25, 1928.
    Appeal and error <§=>750(4) — Court of Civil ' Appeals cannot consider sufficiency of evidence to support finding under assignment of no evidence to make jury issue.
    Court of Civil Appeals 'held, -without authority to consider question of sufficiency of evidence to support jury’s finding under assignment of error that court erred in submitting issue to jury, in that there was no evidence before the jury on which to predicate finding, since question of sufficiency of evidence to support jury’s finding is one of fact, whereas claim that there was no evidence raises question of law.
    Certified, Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.
    , Suit by the Hall Music Company against Jim Robinson and others. From an adverse judgment, plaintiff appealed to the Court of Civil Appeals. On question certified from Court of Civil Appeals.
    Question answered.
    Scarborough & Wilson, of Abilene, for appellant.
    Stinson, Coombs & Brooks, of Abilene, for appellee.
   HARVEY, P. J.

Certified question from the Court of Civil Appeals for the First Supreme Judicial District. The certificate ■states the facts, so far as material here, as follows:

“Appellant, Hall Music Company, brought suit in the county court of Taylor county against the appellee Robinson on a promissory note alleged to have been executed by the defendant in favor of the plaintiff. Among other ■defenses presented by the defendant was a plea of payment. This issue was submitted to the jury and found in favor of appellee, and from a judgment on a special verdict of the jury in favor of appellee, appellant has appealed to this court. The only assignment relating to the matter of the sufficiency of the testimony is as follows: ‘The court erred in submitting to the jury his special issue as follows: “Do you find that the payment of the said $52 as admitted by both parties constituted payment in full of said note by the defendant Robinson? Answer yes or no.” To which question the jury answered, “Yes.” Said verdict and judgment should be set aside and held for naught, for the reason that there was no evidence before the jury on which to predicate such a finding.’ No written objections were presented to the charge and no peremptory instruction requested.”

The certified question set out in the certificate reads as follows:

“Has this court the authority to consider the assignment as copied in the foregoing statement as an assignment raising the question of the sufficiency of the evidence to support the verdict of the jury?”

The assignment of error set out. in the certificate relates to a question of law — that of no evidence to raise the issue of fact that was submitted to the jury. The question of the sufficiency of the evidence to support the finding of the jury under the special issue submitted to them is one of fact. The assignment does not call upon the court to decide the latter question; for this reason the court is not authorized to decide it under that assignment. T. & P. Ry. Co. v. Raney, 86 Tex. 367, 25 S. W. 11. See, also, Elec. Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S. W. 1030.

We recommend that the certified question be answered, “No.”

•j

CURETON, C. J.

Opinion of the Commission of Appeals answering certified questions adopted, and ordered certified, to the Court of Civil Appeals.  