
    SPRINKLES et al. v. KERBOW et al.
    (No. 714-4279.)
    (Commission of Appeals of Texas, Section A.
    Feb. 3, 1926.)
    1. Appeal and error 1083 (3) — Finding of Court of Civil Appeals, that finding of jury as to lack of capacity was against weight of evidence, a finding of fact and not conclusion of law authorizing review of evidence by Supreme Court.
    Where on appeal Court of Civil Appeals found that finding of jury as to lack of capacity of party to make deed was clearly against the great weight of the evidence, such finding was a finding of fact binding upon Supreme Court, and not a conclusion of law which would give Supreme Court authority to review evidence.
    2. Appeal and error <©=> 1094(I) — Commission of Appeals without authority to disturb finding of fact.
    Commission of Appeals held without authority to disturb finding of fact.
    3. Appeal and error <S=olll4 — On finding that verdict was aga'inst weight of evidence, Court of Civil Appeals was without authority to render judgment, and Supreme Court must render proper, judgment.
    Where Court of Civil Appeals on appeal found, as a matter of fact, that verdict of jury below was against the weight of the evidence, it was without authority to render judgment, but should have remanded cause for retrial, and on appeal from judgment so rendered, Supreme Court, in view of Rev. St. 1925, art. 1771, must reverse such judgment, and enter judgment which Court of Civil Appeals should have rendered.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Suit by Martha Sprinkles and others against S. D. Kerbow and others, judgment of the Court of Civil Appeals was entered (264 S. W. 115), reversing a judgment of the district court for plaintiffs, and rendering judgment for defendants, and plaintiffs bring error.
    Judgments of Court of Civil Appeals and of district court reversed, and case remanded.
    G. C. McKinney, of Cooper, Clark & Clark, of 'Greenville, and Ben D. Clower and L. L. James, both of Cooper, for plaintiffs in error.
    A. T. Stell, of Cooper, and McMahan & Do-honey, of Greenville, for defendants in error.
   NICKELS, J.

The suit, as tried, involved the question of whether or not Mrs. Mary Kerbow (since deceased), at the time of the execution by her of the deed in question, was possessed of sufficient mental capacity to enable her to make the deed and its grant.

Upon appeal the honorable Court of Civil Appeals (264 S. W. 115) expressed this conclusion, “We think the finding of the jury was clearly against the great weight of the evidence,” the jury having found lack of sufficient capacity. This involved a finding of fact, in the exercise of the constitutional jurisdiction of that court, and it is binding upon the Supreme Court. It is not a finding, or conclusion, that there is no evidence to support the jury’s verdict; hence, it is not a conclusion of law which would give the Supreme. Court power to review the evidence.

This court is without authority to disturb the finding of fact. Wilson v. Freeman, Receiver, 108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203. But the finding, having been made, also conclusively determined what disposition should have been made of the case by the Court of Civil Appeals; a remand of the case for another trial ought to have followed, as a matter of course, and that court was without authority to render judgment for S. D. and W. R. Kerbow, as it attempted to do. Choate v. San Antonio, etc., Ry. Co., 91 Tex. 406, 44 S. W. 69; Brown v. City Service Co. (Tex. Com. App.) 245 S. W. 656, 658. And it is now the duty of the Supreme Court to reverse the judgment of the Court of Civil Appeals and to render the judgment which that court should have rendered (article 1771, R. S. 1925), namely, a reversal of the judgment of the district court and a remand of the cause for retrial.

We realize that the situation which will be presented to the district judge upon the new trial may be confusing, in view of the deduction (expressed by the honorable Court of Civil Appeals) to the effect that Mrs. Kerbow was possessed of sufficient capacity to make the deed. Hence, we believe it proper to add that we have examined the evidence in respect to that conclusion of law, and think it is amply sufficient to present an issue for the jury. Ordinarily, of course, an affirmance, instead of a reversal, ought to follow; but an anomalous situation has been created by the concurrent existence of the finding of fact and the conclusion of law above mentioned of such a nature as to preclude an af-firmance.

Accordingly, we recommend that the judgments of the Court of Civil Appeals and of the district court be reversed and that the cause be remanded.

CURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. ■

We approve the holding of the Commission of Appeals on the questions discussed in its opinion. 
      <§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     