페이지 이미지
PDF
ePub

to

jection in court below flatly denied witness bad am 263(3) (Tex.Civ.App.) Assignment of er: so testified.--Hill v. Harvey, 201 S. W. 535.

I

ror "the court erred in failing to give special Cm 232(1) (Ark.) Recital in answer and testi- charges,” numbering them, was insufficient be. mony that improvement ordinances were passed cause it did not appear that appellant excepton certain date, which was Sunday, held not to ed to refusal of court to give such special raise the question for review where objection charges as required by Rev. St. art. 2061. was not made in petition, and court's attention Shuler v. City of Austin, 201 S. W. 445. was not specifically directed thereto.-Buxton v. 266(2) (Mo.App.) Where defendant did not City of Nashville, 201 S. W. 512.

except to trial court's action in overruling his C-232(2) Tex.Civ.App.) In trespass try

exceptions to referee's report, on defendant's aptitle, where defendant offered a deed which re

peal, Court of Appeals cannot notice any of ferred to a plat, and the plat, as an integral objections, but must accept report as establishpart of the deed, which was received without ing facts.-Eadie v. Johnston, 201 S. W. 601. objection, error could not be predicated on ad- Cw273(8). (Ark.) Where only one of several mission of the plat, as being a written instru- requested instructions was erroneous, refusal ment not proven up by competent evidence.- of correct instructions cannot be reviewed unMassingill v. Moody, 201 S. W. 265.

der exceptions en grosse.—Moore v. Ellis, 201 ww232(2) (Tex.Civ.App.) An appellate court

S. W. 794. cannot consider grounds of objection to evi- Ow274(4) (Mo.App.) Where plaintiff failed to dence, not made when the evidence was offer- reserve any exceptions to the granting of a ed.-Farmers' State Guaranty Bank V. Pier- peremptory instruction, exceptions afterward son, 201 S. W. 424.

taken to the ruling on the motion to set aside 232(2) (Tex.Civ.App.) Where only objec- the nonsuit cannot relate back to the ruling tion to question was that it called for conclu- on the peremptory instruction so as to present sion, all other grounds were waived.-McAllen anything for review.-St. John v. St. John Land v. Wood, 201 S. W. 433.

& Timber Co., 201 S. W. 916. Om233(1) (Mo.App.) Presence of counsel for de

(D) Motions for New Trial. fendant which did not appeal did not have effect to prevent appealing defendant from urging not presented to the trial court in a motion for

m281(1) (Tex.Civ.App.) An assigned error objection to oral instruction.---Bergfeld v. Dun

new trial, cannot be considered.-Shuler v. City ham, 201 S. W. 610. Am233(1) (Tex.Civ.App.) While a formal bill Em 281(3) (Ark.) Kirby's Dig. 88 449, 4480,

of Austin, 201 S. W. 415. of exceptions is not necessary, it is essential and 4485, providing summary proceedings to to show that objections to the general charge recover money in hands of attorneys, are penal were made in writing, presented to opposing in their nature and must be strictly construed. counsel and the court, before submission of the charge to the jury,' and that the court did --Davies & Davies v. Patterson, 201 S. W. 504. actually overrule them.--Corpus Christi Street C292 (Ark.) Alleged error in failing to make & Interurban Ry. Co. v. Kjellberg, 201 S. W. a declaration of facts requested will not be 1032,

reviewed when not made a ground of the mo237(2) (Tex.Civ.App.) Where bulk of a Co. v. Davenport, 201 S. W. 1114.

tion for new trial.-Jonesboro, L. C. & E. R. witness' opinion evidence as to value was received, before cross-examination showed that

298 (Mo.App.) Defendant appellant's objecit was inadmissible, a party desiring the ex

tion to trial court's action in overruling excepclusion of such testimony must move therefor tions to referee's report, taken in motion for or he cannot complain.-Ft. Worth & D. C. new trial, must be founded on exception taken Ry. Co. v. Hapgood, 201 S. W. 1040.

to ruling when made.-Eadie v. Johnston, 201 Ciw 242(5) (Mo.) Where evidence was admitted, S. W. 601. “subject to the objection" of plaintiff, who made m300 (Ky.). Where motion for new trial was no further effort to obtain a definite ruling, and not made until five days after verdict and judgthere was no definite ruling, Supreme Court nent, Court of Appeals cannot consider evicould not know whether court considered the dence, and only question is whether pleadings evidence, and hence could not review its admis- authorize judgment in view of Civ. Code Prac. sion.-- Kansas City Disinfecting & Mfg. Co. v. $ 342.-Johnson v. Boggess, 201 S. W. 42. Bates County, 201 S. W. 92.

Om 301 (Tex.Civ.App.) In action to

automobile, in alternative for purchase price, (C) Exceptions.

with foreclosure of lien, plaintiff having sued

out writ of sequestration and car having been Cm 260(1) (Tex.Cir. App.) Admission or rejec- replevied later by defendant, failure of verdict tion of evidence cannot be reviewed, in the ab- and judgment for plaintiff against defendant sence of exception reserved thereto.- Miller v. and sureties on replevin bond to find value of P. W. Ezell Mercantile Co., 201 S. W. 734. car held error apparent on face of record reC-261 (Mo. App.) Where court sustained on

quiring reversal, though not raised in motion jections to remarks of plaintiff's counsel to the for new trial.- Reeves v. Avina, 201 S. W. 729. jury, defendant cannot complain that the court Ow30! (Tex.C'iv.App.) An assignment of erdid not rebuke counsel, where no request so to

ror raising an issue not raised in a motion for do was made, and no exception was taken to a new trial will not be considered.-Western the rulings on the objections.- Jackson County Union Telegraph Co. v. Golden, 201 S. W. 1080. v. Enright, 201 S. W. 599.

302(2) (Tex.Civ. App.) Where a motion for 262(2) (Mo.App.) Where plaintiff did not

new trial has been filed, the party appealing is except to the granting of defendant's motion confined to the matters therein assigned, unfor a peremptory instruction and the record der Court of Civil Appeals rule 24 (142 S. W. recited he took an “involuntary" nonsuit which xii).-Boedefeld v. Johnson, 201 S. W. 1027. the court on motion refused to set aside, noth- Emas 302(5) (Mo.) An assignment of error in the ing is presented for review.-St. John'v. St. motion for a new trial that “the court refused John Land & Timber Co., 201 S. W. 916. proper declarations of law offered by the plain263(3) (Tex.Civ.App.) In view of Vernon's tiff” is not sufficient, even in a civil case to auSavles' Ann. Civ. St. 1914, arts. 1970, 1971, and Mig. Co. v. Bates County, 201 S. W. 92.

thorize review.-Kansas City Disinfecting & 1973, as'to presentation of instructions tó opposing counsel, exceptions to a refusal to give special charges, failing to show that they were

VI. PARTIES. submitted to opposing counsel, will not be con Omw 335 (Ky.) Where appeal is by filing statesidered.-Sullivan v. Masterson, 201 S. W. 194. I ment under Civ. Code Prac, 8 739, and sey

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

recover

ex

eral parties who have recovered separate judg-1 X. RECORD AND PROCEEDINGS NOT ments are named as appellees in the single

IN RECORD. statement, and only one tax of appeal is paid, (A) Matters to be shown by Record. the one first named is appellee.-Matney v. Edmonds, 201 S. W. 465.

Cw493 (Tex.Civ.App.) On appeal from suit in

county court to foreclose debt of $412.21 where VII. REQUISITES AND PROCEEDINGS legations in pleadings, the value at time of suit

the transcript did not affirmatively show, by alFOR TRANSFER OF CAUSE.

of chattel which was subject of foreclosure, so (B) Petition or Prayer. Allowance, and as to show jurisdiction of lower court, Court Certificate or Afli davit.

of Civil Appeals had no jurisdiction.-Bush v. Cw359 (Ky.) Where appeal is prayed and Campbell, 201 S. W. 1075. granted from a judgment in its entirety, amount w499(1) (Tex.Civ.App.) An assignment of erin controversy on the appeal as regards power

ror complaining of the argument will be over. of circuit court to grant appeal, is amount of ruled where the bill of exception states no reajudgment, and not of part superseded.--Calvert son for the objection to the argument, especially v. Wilder, 201 S. W. 449.

where it appears therefrom that the argument

was entirely within the record and proper.(C) Payment of Fees or Costs, and Bonds San Antonio, U. & G. R. Co. v. Dawson, 201 or Other Securities.

S. W. 247. Cun373(1) (Tex.Civ.App.) Appeal from judgm 499(3) (Tex.Civ.App.) That one may comment in lower court, where law requires bond plain on appeal of introduction of improper to be given, is not perfected until bond is filed, evidence, he must have objected to it at the time. under Vernon's Sayles' Ann. Civ. St. 1914, arts. and preserved the objection by bill of exceptions. 2099, 2101.--Lynch v. Bernhardt, 201 Š. W. --City of San Antonio v. Newnam, 201 S. W. 1051.

191. In action against sureties on guardian's bond, C 499(4) (Mo.) On appeal by defendant from appeal bond was necessary to perfect appeal order granting new trial for error in giving inby sureties.-Id.

struction requested by it, that appellant's bill Om374(2) (Tex.Civ. App.) Vernon's Sayles' of exceptions does not bring into record facts Ann. Civ. st. 1914, art. 2106, relieving execu- showing wliether plaintiff objected to giving of tors and guardians from giving bonds on ap such instruction is not ground for reversal, peal taken in their fiduciary capacity, does not plaintiff having filed no bill of exceptions. In apply where guardian or administrator is per- Division 1; Blair and Graves, JJ., expressing sonally aggrieved, and appeals in his own right. no opinion.)--Owens v. Kansas City, C. C. & -Lynch v. Bernhardt, 201 S. W. 1051.

St. J. Ry. Co., 201 S. W. 548. w389(3) (Tex.Civ.App.) Proof of inability to w 500(3). (Tex.Civ.App.) The failure to pay costs required by Vernon's Sayles' Ånn. clude testimony on motion will not be considerCiv. St. 1914, art. 2098, to be made before ed where the bill of exception does not affirmacourt trying the case, must be made before the tively show that the court ruled on the motion.court, if in session, and it must affirmatively ap

San Antonio, U. & G. R. Co. v. Dawson, 201 pear it was thus made to give jurisdiction.-S. W. 247. Horn v. Missouri, K. & T. Ry. Co. of Texas,

(B) Scope and Contents of Record. 201 S. W. 1101.

Under Vernon's Sayles' Ann. (iv. St. 1914, aw 533(1) (Mo.App.) A memorandum stateart. 2098, requiring proof of inability to pay ment as to a finding as to a disputed fact in an costs to be made before the court trying the equity case, based on evidence not brought up case, the judge has no power to hear proof aft. | in the record, inserted by the trial judge when er adjournment for the term.-Id.

signing the bill of exceptions, is no part of the Hearing, while in session, proof of inability record and cannot be considered for any purto give cost bond in trial court would not cure pose.-Hobson v. Lenox, 201 S. W. 964. irregularity in perfecting appeal in hearing proof of inability to pay cost after court has (C) Necessity of Bill of Exceptions, Case,

or Statement of Facts. adjourned.-Id.

C544(1) (Tex.Civ.App.) Refusal of request. (D) Writ of Error, Citation, or Notice. ed charge cannot be reviewed, where exceptions C 407 (1) (Tex.Civ.App.) Defect in sheriff's

thereto are not supported by a formal bill of return of citation in error served upon defend exceptions required by statute at time of trial. ant in error, if but amendable irregularity, does

-Miller v. P. W. Ezell Mercantile Co., 201 S. not deprive appellate court of jurisdiction to

W. 734. determine cause.-Sypert v. Rogers Lumber Co., 544(1) (Tex.Civ.App.) In case tried before 201 S. W. 1102.

Acts 35th Leg. c. 177 (Vernon's Ann. Civ. St.

Supp. 1918, art. 1974), as to effect of refusal to VIII. EFFECT OF TRANSFER OF give special instructions, went into effect, where CAUSE OR PROCEEDINGS

there are no bills of exception disclosing special THEREFOR.

charges were presented at time and in manner

required, and refusal to give excepted to, as(B) Jurisdiction Acquired by Appellate signments as to such charges must be overruled. Court.

-Dixon v. Winters, 201 S. W. 1103. 456 (Mo.) Where appeal was taken from 544(3) (Mo.) Where there is no bill of er. partition proceedings involving title, the Su- ceptions, only the record proper is before the preme Court had jurisdiction to pass upon ti-court.-Tracy v. Tracy, 201 S. W. 902. tle.-Brown v. Simpson, 201 S. W. 898.

Where a case, there being no bill of excep

tions must be decided upon the record proper, IX. SUPERSEDEAS OR STAY OF PRO- which does not indicate any errors of the CEEDINGS.

trial court the judgment must be affirmed.-Id. 488(1) (Ark.) Where the chancery court

(E) Abstracts of Record. entered a decree dismissing the complaint, and dissolving a temporary injunction, an appeal (ww580 (Ark.) The duty devolves on a crossdoes not continue in force the injunction un appellant to abstract the case sufficiently to less plaintiffs obtain an order of trial court con

show that the lower court was wrong.-Terry tinuing the injunction until appeal is perfected v. Klein, 201 S. W. 801. and a similar order in the appellate court after 581 (3) (Mo.) An abstract of record which the appeal is lodged therein.-Mewes v. Home does not show as # part of the record proper Bank of De Witt, 201 S. W. 1106.

that any bill of exceptions was filed in the trial

1

answer

were

court is fatally defective. Tracy v. Tracy, 201, whether he was sufficiently informed upon the S. W. 902.

matters to express an opinion is insufficient to Emo 581(8) (Mo.App.) Where neither appellant's show error in the admission of that testimony, original abstract of record proper nor short for the trial judge might have satisfied hiniform transcript showed that his motion for a self that the witness was qualified.--Southern new trial was filed during the term in which the Pac. Co. v. Stephens, 201 S. W. 1076. verdict was rendered, nothing but record proper m 690(7), (Mo.) Error does not appear in is before Court of Appeals.-Mason v. Hutchi- | trial court's refusal to allow interrogation of son, 201 S. W. 593.

expert witness as to conditions he would conww590 (Mo.. App.) Appellant's amended ab- sider in forming opinion as to distance within stract, tending to show that his motion for new which hypothetical stop of street car could be trial was filed same term at which verdict was made, where appellate court is not informed rendered, cannot be considered by Court of Ap- as to character of interrogation desired to be peals when filed after submission of case.--Ma- propounded, nor of facts designed to be elicited son v. Hutchison, 201 S. W. 593.

thereby.-Hill v. Harvey, 201 S. W. 535. 592(1) (Mo.) Where a city sued to recover Cm 690(7) (Tex.Civ.App.) Where

to a fine for violation of an ordinance, and the de- question is not shown in assignment of error, fendant appealed to the Supreme Court without and statement of facts for bill of exceptions, printing an abstract of record, as required by to which reference is made, contains certain rules 12, 13, and 14 (186 S. W. vii, viii), the testimony of the witness, but does not show appeal must be dismissed.-City of St. Louis v.

the question complained of, no error is preVaughn, 201 S. W. 524.

sented.-McAllen v. Wood, 201 S. W. 433.

Om692(1) (Ky.) Refusal to allow defendant to (H) Transmission, Filing, Printing, and read book entries is not reviewable; the record Service of Copies.

containing no avowal as to what he would mw 633 (Mo.App.) Where the appellant served thereby have proved.--Riglesberger v. Katter. a paper called an "Abstract of Evidence," and john, 201 S. W. 459. after filing it changed the name to “Abstract of Om692(1) (Mo.App.) Where memorandum is Bill of Exceptions," and the abstract as chang- not shown in abstract of record, Court of Aped was never served on the respondents, the peals cannot pass on question whether trial appeal would be dismissed for noncompliance court erred in excluding it.-Estes v. Hartford with rule 15 (169 S. W. xiii), requiring service | Fire Ins. Co., 201 S. W. 563. of abstract.-Larkin v. Minard, 201 S. W. 566. 692(1) (Tex.Civ.App.) An assignment of er1) Defects, Objections, Amendment, and

ror complaining of the sustaining of an objecCorrection,

tion to a question will be overruled where the mw 634 (Tex.Civ.App.) Where the files

bill of exception does not show what answer the Ost, anů appellant made no attempt to substi- G. R. Co. v. Dawson, 201 S. W. 247.

witness would have made.-San Antonio, U. & tute records under Vernon's Sayles' Ann. Civ. St. 1914, arts. 2157-2163, and his bills and as: Om694(2) (Tex.Civ.App.) Where the statesignments showed no error, he was not entitled ment merely sets out the petition, without the to remand for new trial “to permit intelligent evidence, under a proposition that court erred in consideration by the Court of Civil Appeals." - not directing verdict, the assignment will not be Massingill v. Moody, 201 S. W. 265.

considered. - Texas & N. O. R. Co. v. Jones, 201

S. W. 1085. Cum 643(4) (Tex.Civ.App.) Under Court Rule 11 (142 S. W. xi), requiring certiorari to per- Cm695(1) (Mo.App.) On appeal in equity, court fect the record to be made as required by rule 8 can only review the evidence when all the evi(142 S. W. xi), which requires motion relating dence is before it.--Hobson v. Lenox, 201 S. to informalities to be filed within 30 days after W. 964. filing the transcript, where transcript was filed mw 697 (3) (Ark.) In an action on a promis. in July, motion for certiorari to perfect the sory note, à bill of exceptions on appeal held record made on November 17th was too late. - sufficient to carry the inference that it containBonnett-Brown Sales Service Co. v. Denison ed all the evidence.-Abbott v. Kennedy, 201 Morning Gazette, 201 S. W. 1041.

S. W.
Om 643 (5) (Mo.App.) Objections that motion Cmw 70211

(Ark.) Assignments of error regardfor new trial is embodied in record proper and ing giving of instructions cannot be considered not in bill of exceptions, and that there is no wless all instructions are set out in abstract, record showing that bill of exceptions had been unless instruction complained of contains incurfiled, cannot be considered if not filed within able defects.-Morris v. Raymond, 201 S. W. 10 days, as required by court rule 33 (169 S. 116. W. xix).-Leritz v. Brock, 201 S. W. 609. ww660 (1) Tex.Civ.App.) Under rule 57 (142

(L) Matters Not Apparent of Record. S. W. xvi), as to bringing up original papers, Cmw713(3) (Mo.) Recitals in a bill of exceptions an order of the trial court is prerequisite to of matters which are required to appear in incorporation of such papers in the record on the record proper are not sufficient.-Tracy v. appeal.-Bonnett-Brown Sales Service Co. v. Tracy, 201 S. W. 902. Denison Morning Gazette, 201 S. W. 1044.

XI. ASSIGNMENT OF ERRORS. (K) Questions Presented for Reriew.

719(4) (Tex.Civ.App.) While the suggestion em 690(4) (Mo.App.) Where an exhibit alleg- that a pleading is not good as against a genered to have been erroneously admitted was not al demurrer raises a question of fundamental set out in the abstract of record, the court on error, the rule does not apply to objections appeal could not review its admission.—Jones raised by special exception.- Western Union v. Jones, 201 S. W. 557.

Telegraph Co. v. Golden, 201 S. W. 1050. Em 690(4) (Mo.App.) Where abstract, on ap-C 719(8) (Tex.Civ.App.) If appellant's contenpeal in equity case involving damages from tion that there is no basis in pleadings for judgfilling up alley, omitted plats and photographs ment be correct, judgment should be reversed showing locus in quo, appellate court would be without formal assignment in that regard. warranted in not considering testimony at all. Summergill v. Jemison, 201 S. W. 216. --Leritz y. Brock, 201 S. W. 609.

C~722(1) (Tex.Civ.App.) Assignments of error, Emaz 690(6) (Tex.Civ.App.) A bill of exceptions failing to show that they are predicated on any which did not affirmatively show that a witness bill of exceptions or that any exception was giving opinion evidence was examined as to taken to the ruling complained of, will not be

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

considered.-Sullivan v. Masterson, 201 S. W. tion, is multifarious.-Western Union Telegraph 194.

Co. v. Golden, 201 S. W. 1080. 722(1) (Tex.Civ.App.) Alleged errors based on 742(2) (Tex.Civ.App.) Assignments of er: upon matters occurring after the motion for ror relating to distinct and different matters new trial is overruled may be raised by filing will not be considered when presented together assignments of error in the trial court.-Werner with only one proposition submitted under all v. Needham, 201 S. W. 213.

assignments.-Palm v. Theumann, 201 S. W. w725(2) (Tex.Civ.App.) An assignment | 421. which presents error in overruling defendant's 742(2) (Tex.Civ.App.) An assignment condemurrer, both general and special, to the pe- sisting of eutire motion for new trial, not subtition is too general to require consideration.-mitted as a proposition in itself, nor followed Western Union Telegraph Co. v. Golden, 201 by one, with no appended statement of facts, S. W. 1080.

but containing eight distinct alleged errors, cu. Om727 (Mo.) Alleged misconduct of appel- mulatively violates Court of Civil Appeals rules lee's counsel in presence of jury cannot be con- 25–31 (142 S. W. xii, xiii), and cannot be considered on appeal, where specific misconduct sidered.-Boedefeld v. Johnson, 201 S. W. 1027. is not pointed out.-Hill v. Harvey, 201 S. W.742 (3) (Tex.Civ.App.) A proposition under 535.

an assignment of error as to sufficiency of the Cum 729 (Tex.Civ.App.) Assignment of error petition in a telegraph company's appeal from a “because court erred in instructing verdict con- judgment for failure to deliver a death message trary to law,” held to violate Rev. St. art. held bad as being too general.-Western Union 1612, requiring distinct specification of errors, | Telegraph Co. v. Golden, 201 S. W. 1080. and rules for preparing cause and briefs (142 Cm74215) (Tex.Civ.App.) An assignment of erS. W. xii).-Shuler v. City of Austin, 201 S. ror that the court erred in instructing as to the W. 445.

control of calls that generally natural objects Assignment of error “because court erred in are the highest, artificial objects next, and charging jury as follows," setting out peremp- course and distance the lowest grade, is not in tory instruction, held to violate Rev. St. art. itself a proposition of law.-Sullivan v. Master1612, requiring distinct specification of errors, son, 201 S. W. 194. and rules for preparing cause and briefs (142 742(6) (Tex.Civ.App.) Assignment of er. S. W. xii).--Id.

ror that "court erred in rendering judgment 730(1) (Tex.Civ.App.) Assignments of error contrary to law," not being sufficiently specife that the court erred in overruling an exception, to be considered as proposition, violates rule as shown in defendant's exception to the charge 30 (142 S. W'. xii), in that it is not followed as a whole, giving the transcript page, is too by any proposition.-Shuler v. City of Austin, general and vague to be considered.-Sullivan v. 201 S. W. 115. Masterson, 201 S. W. 194.

Plaintiff's assignment of error that "court Cm730(1) (Tex.Civ.App.) Assignment of er- erred in rendering judgment contrary to law," ror that the "court erred in failing to give the not being followed by statement showing what, special charges," referring to them by number, if any, evidence was introduced to sustain alheld to violate Rev. St. art. 1612, requiring legations of plaintiff's petition, violates rule distinct specitication of errors, and rules for 31 (142 S. W. xiii) in regard to briefing cases. preparing cause and briefs (142 S. W. xii).- --Id. Shuler v. City of Austin, 201 S. W. 415. ww742 (6) (Tex.Civ.App.) Assignment of error Ow730 (2) (Tex.Civ.App.) Assignment of error

in terms merely to allowance of interest to that “the court crred in failing to give special which plaintiffs were not entitled, not being fol. charges,” numbering them, was insufficient be- lowed by proposition or statement pursuant to cause special charges requested and refused Courts of Civil Appeals rule 31 (142 S. W. were not set out in assignment itself, nor in xiii), will not be considered.-Hudson v. Salley, statement following same.-Shuler v. City of 201 S. W. 665. Austin, 201 S. W. 415.

743(1) (Tex.Civ.App.) Assignments of error Ow731(1) (Tex.Civ.App.) An assignment of will not be considered, when not in substantial error, "The verdict was contrary to the law and compliance with rule 25 (142 S. W. xii), reevidence," is too general and indefinite, within guiring reference to the part of the motion of the condemnation of Court of Civil Appeals new trial wherein the error assigned is comrule 26 (112 S. W. xii).- Miller v. P. W. Ezell plained of.-Sullivan v. Masterson, 201 S. W. Mercantile Co., 201 S. W. 734.

1.2. w733 (Tex.Civ.App.) Assignment of

743(1) (Tex.Civ.App.) An assignment of erthat “the court erred in rendering judgment ror containing no reference to the record, showcontrary to law” is too general to be consid- ing that the assignment was part of the motion ered as proposition within itself, and violates for new trial in the court below, will not be Rev. St. art. 1612, and rules 24, 25, and 26 for considered. - Western Union Telegraph Co. v. Courts of Civil Appeals (142 S. W. xii).- | Golden, 201 S. W. 1080. Shuler v. City of Austin, 201 S. W. 415.

A proposition under an assignment of error

which is not a copy of any ground set out in the C-736 (Tox.Civ.App.) In view of Rev. St. motion for new trial, and does not show by the 1911, art. 1612, as amended by Acts 33d Leg. c. record where it may be found, nor that any 1:36 (Vernon's Sayles' Ann. Civ. St. 1914, art. exception was taken to the ruling thereon, will 161:2), making an assignment of error sufficient not be considered.-Id. if it directs the court to the error complained of, 750(4) (Tenn.) An assignment to the effect an assignment, though multifarious, which so directs the court, is sufficient.-Crawford v. El that the trial court erred in not peremptorily inPaso Land Improvement Co., 201 S. W. 233.

structing the jury is equivalent to an assign

ment that there was no evidence to support the Con 736 (Tex.Civ. App.) Assignment of error verdict.-Southern Ry. Co. y. Lewis & Adcock wherein complaint is made of two separate and Co., 201 S. W. 131. independent rulings of court is bad for multifariousness.-Lynch v. Bernhardt, 201 S. W.

XII. BRIEFS. 1031.

759 (Tex. Civ.App.) Division in brief of asww736 (Tex.(iv.App.) Assignment which com signment of error into several parts with sepa[!ains of two separate rulings is multifarious rate propositions violates rule 29 (142 S. W. and will not be considered.-Sanitary Mfg. Co. xiii) for Court of Civil Appeals, and assignv. Gamer, 201 S. W. 1008.

ment cannot be reviewed.--McAllen v. Wood, Em737 (Tex.Civ.App.) An assignment which 201 S. W. 433. presents error in overruling defendant's dec759 (Tex.Civ. App.) Undercourt rule 29 murrer, both general and special, to the peti-(112 S. W. xii), the Court of Civil Appeals will

error

pot consider any assignment of error in the the question is raised or not.-Werner v. Needbrief subsequent to the first where there is the ham, 201 S. W. 213. next number after one.::-Western Union Tel: 846(2) (Mo.) When prima facie

case is egraph Co. v. Golden, 201 S. W. 1080.

made by plaintiffs, and no instructions are askOm766 (Tex.Civ.App.) The Court of Civil Ap- ed or given, appellate court will not review peals now considers all questions upon their evidence to determine its sufficiency to overmerits in the absence of disregard of statutory throw plaintiffs' case.--Davis v. Dawson, 201 provisions or Aagrant or inexcusable disregard S. W. 524. of the rules of briefing.-Crawford v. El Paso 853 (Mo.) A contractor alleging breach of Land Improvement Co., 201 S. W. 233.

contract on part of owner of building suing ini Ow77! (Tex.Civ.App.) Failure to comply with quantum meruit for materials furnished and Rev. St. 1911, art. 2115, as to time of filing asking and securing instructions limiting his rebrief, held not excused by custom among the at- covery to the contract price is bound thereby.torneys of the place to waive it and the effects Bradley Heating Co. v. Thomas H. Sayman under rule 39 (112 S. W. xiii) of noncompliance. Realty & Investment Co., 201 S. W. 864. - Missouri, K. & T. Ry. Co. of Texas v. Jeffer-m854(6) (Mo.App.) Where on motion for new son, 201 S. W. 211.

trial the court sets aside a verdict without statOw773(2) (Tex.Civ. App.) Appeal will be dis- ing reasons therefor, his action will be affirmmissed under rule 39 (142 S. W. xiii), appel- ed if any of the grounds stated in the motion lant's brief being filed only four days before are sufficient.-Frisbie v. Scott, 201 S. W. 561. time for submission instead of according to Rev. St. 1911, art. 2115, and noncompliance not be (C) Parties Entitled to Allege Error. ing excused.-Missouri, K. & T. Ry. Co. of Texas v. Jefferson, 201 s.' W. 211.

879 (Tex.Civ.App.) Where no objection was

made by intervener or any one else to judgment XIII. DISMISSAL, WITHDRAWAL, OR in his favor and he is not included in appeal ABANDONMENT.

bond and made no motion for new trial, but

filed a brief styling himself appellant, he has Omw 781(1) (Ark.) The court will not decide no standing in Court of Civil Appeals.-Binder questions which have ceased to be an issue by v. Millikin, 201 S. W. 239. reason of facts having intervened, rendering 882(8) (Mo.) Where defendant permitted their decisions of though a dismissal will leave the costs of thé a deposition by it to be read in evidence without litigation on the appellant.--Henry, Quellmalz proof of 'same facts by another witness did not

objection, failure to sustain its objection to Lumber & Mfg. Co. v. Day, 201 S. W. 125.

constitute reversible rror, as he invited the Om790(2) (Ark.) Appeal from judgment in re-error.-Reynolds v. Maryland Casualty Co., 201 plevin action for lumber claimed under attach- S. W. 1128. ment sale will be dismissed, where subsequent to m882(8) (Mo.App.) Where a party takes a judgment circuit court sustained exceptions to the report of the sale and set aside the sale.- deposition and examines a person as to a cusHenry Quellmalz Lumber & Mfg. Co. v. Day, it cannot complain of introduction of other evi

tom, and introduces the deposition in evidence, 201 S. W. 125.

dence concerning such matter.-Akeman v. WaOw790(2) (Mo.App.) Vacation of judgment bash Ry. Co., 201 S. W. 590. ipso facto destroys lien, so that court on ap- cm 882(12) (Ark.) Appellants cannot complain peal will not consider propriety of order vacat- that instruction on undue influence was unauing record of satisfaction of judgment.--Warren thorized by evidence where they sought and obv. Order of Railway Conductors of America, tained instruction upon that issue.-Morris v. 201 S. W. 368. 792 (Tex.Civ.App.) Appeal will be dismissed m883 (Mo.) Where party to suit for personal

Raymond, 201 S. W. 116. on the court's own motion, where absence of jurisdictional requirements 'appear on face of injury has assumed burden of proof which is the record, though called to the court's atten

unnecessary under pleadings and facts, other tion by motion to dismiss, which need not be party, on appeal, after having enjoyed benefits entertained.—Horn v. Missouri, K. & T. Ry. -Miller v. Harpster, 201 S. W. 854.

of such assumption, cannot complain of error. Co. of Texas, 201 S. W. 1101. Eu 797(2) (Tex.Civ.App.) Motion, under rule (D) Amendments, Additional Proofs, and 39 (142 S. W. xiii), to dismiss appeal for non

Trial of Cause Anew. compliance with Rev. St. 1911, art. 2115, as to ww895(2) (Tenn.) The rule is that, on appeals time for filing brief, held not governed by rule in chancery, trial de novo relates, not to techni8 (142 S. W. xi) as to time for motions affecting calities of procedure, but to chancellor's decision formalities attending the filing of transcripts.- on facts, which does not have same forct as Missouri, K. & T. Ry. Co. of Texas v. Jefferson, verdict or finding of fact by court of law sitting 201 W. 211.

without a jury.-Brewer v. De Camp Glass CasOw799 (Ark.) Under Kirby's Dig. § 1227, evi- ket Co., 201 S. W. 145. dence of facts outside the record, showing that the further right of prosecuting the appeal has

(E) Presumptions. ceased, may be received on motion to dismiss.-901 (Mo.App.) It devolves on appellant to Henry Quellmalz Lumber & Mfg. Co. v. Day, show that the trial court erred. Hobson v. 201 S. W. 125.

Lenox, 201 S. W. 964.
XVI. REVIEW.

ww907 (3) Tex.Civ.App.) In absence of finding

of facts or statement of facts, Court of Civil (A) Scope and Extent in General.

Appeals must presume trial court had sufficient Om837 (5) (Mo.App.) The court on appeal is facts before it whereon to render the judgment not required to look to plaintiff's instruction it did render.- Bailey v. Burkitt, 201 S. W. which had not been given when the ruling on 725. demurrer to evidence was made, as the trial 918(3) (Tex.Civ.App.) Trial amendment of court cannot be convinced of error in overrul- petition, reciting that it was filed with leave of ing the demurrer because of error in instruc- court, will be presumed to have been filed upon tions.-Bright v. St. Louis Vitrified & Fire proper leave.-Figueroa v. Madero, 201 S. W. Brick Co., 201 S. W. 641.

271. Cm840(2) (Tex.Civ.App.) It is the duty of ap- 926(2) (Tex.Civ.App.) In support of trial pellate courts to pass upon the jurisdiction of court's ruling, it will, in absence of evidence the trial court to render the judgment, whether to contrary, be presumed that ordinance was

For cases in Dec. Dig. & Am. Dig. Key No Series & Indexes see same topic and KEY-NUMBER

« 이전계속 »