Opinion
Application No. 14293.
Decided November 18, 1925.
1. — Error — Remand or Rendition.
Where the opinion of the court determined in appellant's favor all the questions involved, no error to his prejudice appeared, though the case was remanded for new trial instead of rendering judgment in his favor. (P. 147.)
2. — Insurance — Proof of Loss — Contract Limiting Time — Statute.
The holding of the Court of Civil Appeals herein (American Surety Co. v. Blaine, 272 S.W. 828) that a provision in an insurance policy (loss by theft or burglary) that proof of loss must be presented at the office of the home company in New York within 60 days of loss, was not made invalid by Rev. Stats. (1925), Art. 5546, Vernon's Statutes, Art. 5714, is disapproved. (P. 147.)
Application by the American Surety Company for writ of error to the Court of Civil Appeals for the Sixth District, in an appeal from Dallas County.
Blaine sued the American Surety Company and recovered judgment. On defendant's appeal the judgment was reversed, and first rendered in its favor; but on motion for rehearing the judgment was changed to one of reversal and remand. This ruling did not, however, make any change in the opinion sustaining the errors assigned by appellant, who then applied for writ of error because of the failure to render judgment. The writ is here refused by a memorandum opinion, per curiam.
Stennis Stennis, for applicant.
The application for writ of error is refused for the reason that no error appears in the opinion of the Court of Civil Appeals as against the applicant, the American Surety Company of New York. We do not agree, however, with the Court of Civil Appeals that the clause in the policy providing for proof of loss to be furnished at the home office of the company within sixty days is not in violation of Revised Statutes (1925), Article 5546 (Vernon's Statutes, Article 5714).