Choate v. San Antonio & A.P. Ry. Co
In Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (Tex. 1898), the court noted that in concluding that the then court of civil appeals had erred in holding that there was no evidence to support a jury verdict in favor of the plaintiff and in instructing the trial court to direct a verdict for the defendant, the supreme court had "neither exceeded its powers nor intrenched upon the jurisdiction of the then court of civil appeals . . . ." 44 S.W. at 69.
The court explained:
"It is elementary that whether there be any evidence or not to support an issue is a question of law, and not of fact, and it follows that the decision of the then court of civil appeals upon such a question is subject to review by this court." Id.
In contrast, although it is the province of the jury to determine questions of fact, "it is in the power of the trial judge to set aside the finding, and to award a new trial." Id.
A court of appeals "has the same power upon appeal." Id.
Thus, if a verdict is "against such a preponderance of the evidence as to justify such action," a court of appeals may "set it aside, and remand the cause for a new trial." Id. at 70.
And the court of appeals' "action upon such questions is made final, and not subject to be reviewed by the supreme court." Id.