
    CORTIMEGLIA v. DAVIS.
    (No. 904-4660.)
    Commission of Appeals of Texas, Section A.
    March 30, 1927.
    1. Judgment <@=>271 — 'Trial judge may not arbitrarily refuse to enter judgment on verdict on special issues covering all facts necessary for judgment (Rev. St. 1925, arts. 2190', 2202, 2209),
    Under Rev. St. 1925, arts. 2190, 2202, 2209, trial court in exercise of its discretion may set aside verdict on special issues -without rendering judgment thereon, but may not arbitrarily refuse to enter judgment on a verdict which constitutes a finding on all facts tendered in pleading necessary to rendition of judgment.
    2. Mandamus <S=>51— Mandamus lies to require entry of judgment where refusal is arbitrary.
    Where it appears from verdict and order refusing to render and enter judgment thereon that refusal is arbitrary and not based on exercise of discretion, mandamus will lie to require entry of judgment.
    3. Vendor and purchaser <©=>284 — Trial court improperly refused to enter judgment on verdict finding facts necessary to support plea
    , of limitation to vendor’s lien;, on ground of conflict with finding of valid lien.
    Where, in action to foreclose vendor’s lien, jury found all facts necessary to'support defendant’s plea of limitation, trial court improperly refused to enter judgment on the verdict on ground of conflict with finding that plaintiff had valid and subsisting lien, since such finding was a conclusion of law and not finding of fact, and was beyond the province of the jury to decide.
    4. Trial <@=>355(3) — Jury in case tried on special issues finds facts only.
    Application of law to the facts is duty of court and not the jury, and province of jury in case tried on special issues is to -find facts only.
    Original mandamus by Tony Oortimeglia against W.. O. Davis. Mandamus awarded.
    C. G. Krueger, of Bellville, and W. M. Hil-liard, of Caldwell, for relator.
    Armstrong & Armstrong and F. L. Henderson, all of Bryan, for respondent.
   BISHOP, J.

On the 18th of June, 1908, Mrs. Zula B. Herron by deed conveyed to Lee Oortimeglia a tract, of land, in consideration of which he executed notes payable to her, a vendor’s lien being retained in both the deed and notes to secure payment. On December 29, 1909, Lee Cortimeglia conveyed to Tony Oortimeglia a portion of this tract consisting of 50 acres. On December 24,1924, Mrs. Her-ron filed suit to recover the amount due on the notes which had not been paid and to foreclose the vendor’s lien against both Lee Oor-timeglia and Tony Cortimeglia. The latter in his answer alleged that at the time he purchased the 50 acres he did not know that Mrs. Herron “or any one else had any claim to or against said land” ; that he entered upon said 50 acres and made valuable improvements thereon, claiming same as his own property against Mrs. Herron and the world; and that Mrs. Herron had notice of his claim and possession. Based on these allegations he interposed pleas of the statutes of limitations of five and ten years.

On trial before a jury the court submitted the following special issues, to which .the jury made answers as Indicated, to wit;

“Special Issue No. 1. Did the plaintiff, Mrs. Herron, in conveying to Lee Cortimeglia the land described in plaintiff’s petition, retain a vendor’s lien to secure the payment of the purchase money thereof? Yes or No. Answer: Yes.
“Special Issue No. 2. Has the plaintiff, Mrs, Herron, now a valid and subsisting lien against said land for the payment of the balance of the purchase money? Answer yes or no. Answer: Yes.”
“Special Issue No. 6. Did the defendant Tony Oortimeglia repudiate the vendor’s lien and superior title held by the plaintiff in said 50 acres of land? And in answering this question you are instructed that in order to constitute a repudiation there must have been an open and notorious rejection, renunciation, and disavowal of the plaintiff’s'lien and superior title in said land, and that the plaintiff must have had actual notice of such rejection, renunciation and disavowal, or that the facts and circumstances were such - as to put plaintiff on notice of said repudiation, renunciation, and disavowal. Answer: Yes. ■
“Special Issue No. 7. If you answer special issue No. 6 in the affirmative, then state at what time the said Tony Oortimeglia repudiated said lien and superior title to said land in the plaintiff? Answer: December 31, 1909, when his deed was recorded.
“If you answer special issue No. 6 in the affirmative, then in that event only, answer special issues Nos. 8 and 9.
“Special Issue No. 8. Has the defendant Tony Cortimeglia been in the actual, peaceable, and adverse possession of the said 50 acres of land under title or color of title, using and enjoying the same, during a continuous period of’ five years from the date of said repudiation to the institution of this suit? Answer yes or no. Answer: Yes.
“Special Issue No. 9. Has the defendant been in the actual, peaceable, and adverse possession of said 50 acres of land, using and enjoying the same, during a continuous period of 10 years from the date of said repudiation to the institution of this suit? Answer yes or no. Answer: Yes.”

Mrs. Herron and Tony Cortimeglia each presented motion for judgment, and on hearing these motions the court made and entered the following order, to wit:

“On this the 19th day of June, A. D. 1925, came on to be heard the motions of plaintiff and defendant that judgment be rendered in the above styled and numbered cause for the plaintiff and defendant respectively, both plaintiff and defendant moving and praying for judgment to be rendered in their behalf based upon the findings of the jury in answer to special issues submitted to them in said cause; and the court, after hearing said motions and argument of counsel for both plaintiff and defendant, is of the opinion' that there is a conflict in the findings of the jury on the issues submitted, and that neither plaintiff nor defendant is entitled to have judgment rendered for them in said cause. It is therefore ordered, adjudged, and decreed by the court that because of the conflict in the findings of the jury on the special issues submitted, judgment be not rendered for the plaintiff in this case, and it is further ordered that a judgment be not rendered for the defendant in said cause, and it is'further ordered that the findings of the said jury in said cause be set aside and a mistrial .entered in said cause, and it is so ordered.”

Relator Tony Cortimeglia, alleging that there is no conflict in the findings of the jury, seeks by writ of mandamus ,to require W. G. Davis, judge of said court, to enter judgment in his favor on the verdict of the jury.

Our statutes provide that “a special verdict * * * shall, as between the parties, be conclusive as to the facts found.” 'Article 2202, R. O. S. 1925. They also provide that “where a special verdict is rendered, * * * the court shall render judgment thereon unless set aside or a new trial is granted” (article 2209, R. O. S. 1925), and ■that the insufficiency of the testimony “to warrant the submission of an issue may be complained of for the first time after verdict” (article 2190, R. O. S. 1925). Under these provisions the trial court in the exercise of discretion may set aside a verdict v.n special issues without having first rendered judgment thereon, and we are of opinion that it may do so, though no specific complaint is made by a party to the suit. The judge of the court, however, has no arbitrary right to refuse to enter judgment on a verdict which constitutes a finding on all the facts tendered in the pleadings' necessary to the rendition .of judgment. And, when it appears from the verdict itself and the order refusing to render and enter judgment thereon that such refusal is arbitrary and not based on the exercise of discretion, mandamus will lie to require entry of judgment. In such case the action of the judge is in effect a refusal to proceed to judgment in the trial of the cause.

In 'thé case of Gulf, C. & S. F. R. Co. v. Canty, 115 Tex. 537, 285 S. W. 296, the Supreme Court awarded writ of mandamus requiring the district judge to enter judgment on a special verdict rendered by a jury. In that case the trial court in its order setting aside the verdict stated that such order was made for the “sole and only reason” that there was “an irreconcilable conflict in the answers of the jury to the special issues to it submitted.” The verdict found all the facts in issue necessary to the rendition of judgment. It contained no conflicting findings of fact as was stated in the recitals in the order. It was shown by the verdict that the reason recited in the order did not exist, and that the action of the court in setting aside the verdict was therefore based on no reason involving judicial discretion.

Here the order of the court recites that after hearing the motion of the respective parties for judgment, “the court * * * is of the opinion that there is a conflict in the findings of the jury on the issues submitted,” and that the order refusing to render judgment was made “because of the conflict in the findings of the jury.” The effect of this order is to declare that no' reason, in the opinion of the court, existed for refusing'to render judgment other than a conflict in the fact findings contained in the verdict.

The verdict contains a finding of all the facts necessary to support relator’s plea of limitation, but respondent asserts that these findings are in conflict with the finding that Mrs. Herron at the time of the trial had a valid and subsisting lien against'the land, of which relator’s 50 acres is a part. Even if this finding should be construed to mean that Mrs. Herron had a lien as against relator on the 50 acres, same is a conclusion of law and not a finding of fact. The province of the jury in a case tried on special issues is to find the facts only. The application of the law to the facts is the duty of the court and not. the jury. The jury have here found every fact necessary to show that relator is entitled to judgment on his plea of limitation. The conclusion that a lien exists was beyond the province of the jury to decide, and immaterial to any fact issue presented in the charge.

This case is ruled by the holding in the case of Gulf, O. & S. F. R. Co. v. Canty, supra, and we recommend that writ of mandamus issue requiring respondent W. C. Davis, district judge, to enter judgment in favor of relator for the 50 acres of land described in his answer.

OURETON, C. I. The opinion of the Commission of Appeals is adopted, and mandamus awarded. 
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