
    MILLS et al. v. MILLS.
    (No. 3271; Motion No. 5091.)
    
    (Supreme Court of Texas.
    June 1, 1921.)
    1. Appeal and error &wkey;M082(2) — Supreme Court is without jurisdiction of assignments of error not passed upon by Court of Civil Appeals.
    Where the Court of Civil Appeals in its disposition of the case did not consider assignments of error presented by appellants relating to certain testimony, the Supreme Court is without jurisdiction of such assignments.
    2. Appeal and error &wkey;>IH4 — Judgment remanding to district court modified to one remanding to Court of Civil Appeals which failed to pass on certain assignments.
    Where the Supreme Court has reversed judgment of Court of Civil Appeals and remanded the cause of the district court, and it is learned that the Court of Civil Appeals did not pass on certain assignments regarding testimony, the judgment remanding to the district court will be changed to a remand to the Court of Civil Appeals.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    On rehearing. Plaintiffs’ and defendant’s motions for rehearing overruled.
    Former judgment (228 S. W. 919) reversing judgment of Court of Civil Appeals (206 S. W. 100) permitted to stand, but the remand to the district court is changed to a remand to the Court of Civil Appeals for consideration of assignments of error on testimony question^.
    Shurtleff & Cummings, of Breckenridge, and Chas. L. Black, of Austin, for plaintiffs in error.
    Wear & Frazier and J. E. Clarke, all of Hillsboro, for defendant in error.
    
      
      Rehearing denied.
    
   PHILLIPS, C. J.

In approving the report of the Commission of Appeals m this case, and in accord with its recommendation, we originally reversed the judgment of the Court of Civil Appeals and remanded the case to the District Court for further trial.

It has come to our attention that the Court of Civil Appeals in its disposition of the case did not consider certain assignments of error presented by the appellant there relating to the admissibility of certain testimony, but reversed the judgment of the District Court upon another and independent ground.

The Supreme Court is without jurisdiction of the assignments of error relating to this testimony, and the Court of Civil Appeals should not be denied the opportunity of determining them.

Both motions for rehearing, filed respectively by the plaintiffs in error and the defendant in error, will be overruled. Our judgment reversing the judgment of the Court of Civil Appeals will stand, but instead of the cause being remanded to the District Court, as was done originally, it will be remanded to the Court of Civil Appeals for its consideration of the assignments of error on the testimony questions.  