Andrus v. Remmert , 149 S.W.2d 584 ( 1941 )

On Motion for Rehearing.

CRITZ, Justice.

This cause is before us on motion for rehearing filed herein by William R. Rem-mert and Humble Oil & Refining Company.

In our original opinion we reversed the judgments of the Court of Civil Appeals and district court, and remanded this cause to the district court with instructions to partition the land indicated upon the following plat outside of the land enclosed within the letters “E, F, G, H.”

A re-examination of this record discloses that we were in error in describing the land which ought to be partitioned. For the purposes of this opinion on rehearing we make the following plat:

As shown by our original opinion, a tract of land 160 ft. by 419 ft. was set apart as a cemetery. We held, however, that all of such tract, except that part enclosed within the letters “E, F, G, H” on the first plat, supra, had been abandoned as such, and adjudged that all of such original tract should be partitioned, except the part still used as a cemetery. On further investigation of this record we find that the land included within the letters “I, J, D, A,” as shown by the second map, supra, was not included in this suit as finally submitted in the district court. We also find that we made a slight mistake in our original plat as to the land actually occupied by the cemetery.

It is ordered that our original judgment herein be set aside and judgment be now entered as follows: The judgments of the Court of Civil Appeals and district court are both reversed, and this cause is remanded to the district court with instructions to partition the two tracts of land included within the letters-“B, F, E, I” and “G, C, J, H,” respectively. We leave the question as to how such partition shall be effected to be determined by the district court. To the extent above indicated the motion for rehearing filed herein by William R. Remmert and Humble Oil & Refining Company is granted; otherwise such motion is overruled.