
    NUSSBAUM et al. v. BLUMENTHAL et al.
    (No. 146-3091.)
    (Commission of Appeals of Texas, Section A.
    May 26, 1920.)
    Appeal and error <@=>1094(5) — Court of Civil Appeals’ conclusion on evidence binding on Supreme Court.
    The conclusion of the Court of Civil Appeals that the verdict was against the weight of the evidence is binding on the Supreme Court.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit by S. J. Nussbaum and another against Joe Blumenthal and others. Judgment was rendered for plaintiffs, was reversed, and cause remanded by the Court of Civil Appeals (195 S. W. 275), and plaintiffs bring error.
    Judgment of Court of Civil Appeals affirmed.
    Carothers & Brown, of Houston, for plaintiffs in error.
    Otto Taub and Wagner & Wagner, all of Houston, and Jas. B. & Ohas. J. Stubbs, of Galveston, for defendants in error.
   SPENCER, J.

Plaintiffs sought a partition of the lands described in their petition located in the city of Houston, Tex. Defendants claimed title to all of the land by virtue of the will of Augusta C. Nussbaum, and challenged plaintiffs’ right to any interest in the land, except a lien to secure the payment of certain legacies to plaintiffs, mentioned in the will of Augusta C. Nussbaum, the stepmother of plaintiffs. Plaintiffs contended that the funds with which the property was purchased were the community funds of their parents, P. S: Nussbaum and Ernestine Nuss-baum. The question as to whether the property was purchased with community funds was determined in favor of plaintiffs by the jury, upon special issues submitted to it, and judgment was rendered upon the special verdict in favor of plaintiffs. Upon appeal, the Court of Civil Appeals reversed and remanded the cause. 195 S. W. 275. The writ of error was granted upon application referred to the committee of .judges.

While it is difficult to determine whether the Court.of Civil Appeals held that there was no evidence to support the findings upon the issues submitted to the jury, or held that the evidence was insufficient to sustain the findings, we are inclined to the view that the effect of the holding was that there was no evidence to support the findings.

Upon an examination of the record, we have concluded that the Court of Civil Appeals erred in its conclusion. In our opinion the evidence raised the issues, and warranted their submission to the'jury.

However, the holding of the Court of Civil Appeals that there was no evidence includes the further finding that the evidence was insufficient to support t)he findings of the jury; and its conclusion that the verdict was against the weight of the evidence is binding upon the Supreme Court. Tweed v. Western Union T. & T. Co., 107 Tex. 247, 166 S. W. 696, 177 S. W. 957.

It is our conclusion, therefore, that the judgment of the Court of Civil Appeals in reversing and remanding the case should be affirmed.

PHILLIPS, O. J. We approve the judgment recommended in this case. 
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