Owenwood Oil Corp. v. Sweet

SMITH, J. In appealing from an adverse judgment for $300, appellant has propounded 43 assignments of error and 20 propositions of law, which he has presented in an S9-page typewritten brief. None of the assignments “refer to that portion of the motion for new trial in which the error is complained of,” as required by rule 25 (142 S. W. xii). This court has never held such omission, alone, to be fatal to an appellant’s case, although it has been so held repeatedly by other Courts of Civil Appeals, and justly so, we think, in view of the fact that the briefer can comply with the rule with the utmost ease and without the least inconvenience, thought, or cost, and therefore the rule imposes no sort of hardship upon him. If either of the 20 propositions of law is germane to either of the 43 assignments of error, as required in rule 30 (230 S. W. vii), there is no showing in appellant’s elaborate brief of such relevancy, and *642 this court must decline the task of c$>-ordi-nating the one with the other. We will paraphrase and adjust to the facts in this case what was said upon this subject by this court in the case of Equipment Co. v. Luse, 250 S. W. 1104: “It is distinctly required in rule 30 (142 S. W. xiii) that the propositions or points of law upon which an "appellant relies ‘shall be germane to one or more of the assignments of error, or relate to fundamental error.’ The justness and necessity of this requirement is, of course, obvious. And it is equally obvious that the burden rests exclusively upon the party to show that his propositions are germane or related to his assignments. This requirement is not expressly written into the rules, but it rests in common sense and fairness, and will be enforced in this court. And where the proponent of propositions of law urged here does not by affirmative referehce show each proposition to be related or germane to specified assignments of error, it will be our policy to disregard such propositions, and go direct to the assignments and dispose of them without reference to the propositions, and in such case where such assignments do not within themselves constitute propositions, they will be regarded as waived. This rule cannot possibly work hardship, and may be complied with by counsel with the utmost ease when they prepare their briefs. On the other hand, the failure of counsel to comply with it entails a great deal of unnecessary labor upon the reviewing authority. In this case for instance, which furnishes a very moderate illustration for this purpose, appellant propounds 20 propositions of law, and brings forward 43 assignments of error. The former are grouped at the front of the brief, while the latter, likewise grouped, repose at the extreme back of the brief, as required by existing rules. * * * In order to determine their relationship, it is necessary to first consider the proposition, 'and then consider each of the 43 assignments of error, and from such separate consideration determine their relevancy, if any. The process requires that each of the 43 assignments be read and carefully considered at least 20 different times, whereby the investigator, for this purpose alone, must travel from front to back of brief at least 860 times. No court can dispatch business in the face of such burdens.” Appellant’s brief is subject to other objections, roost of which are set out and vigorously complained of by counsel for appel-lee, who, having provoked, now ingeniously invoke, the decision in the Equipment Company Case. Eor instance, the first assignment of error is that— “The court erred in overruling and in not sustaining defendant’s general demurrer and special exceptions to plaintiff’s petition filed herein.”. As there are five different special exceptions in appellant’s trial answer, this assignment' is too general, is multifarious, and is not entitled to consideration. Rules 25 and 26; Miller v. Vernoy, 2 Tex. Civ. App. 675, 22 S. W. 64; Tel. Co. v. Carter, 42 Tex. Civ. App. 224, 94 S. W. 205; Ryan v. Teague, 50 Civ. App. 153, 110 S. W. 117; Irwin v. Jackson (Tex. Civ. App.) 230 S. W. 522. The next 1® assignments of error are in form identical with the second, which is that— “The court erred in permitting the witness J. J. Sweet to testify, as shown in bill of exceptions No. 1.” No reference is given in the assignment to the motion for new trial or to the transcript, either for the purpose of locating the assignment itself or the designated bill of exceptions. No proposition among the 20 set forth in the beginning of the brief purports to relate to this assignment, and the briefer thus, shifts to this court the burden of searching the 89 typewritten pages of the brief in order to locate the transaction in the transcript and statement of facts, if in fact the references necessary for that purpose are contained in the brief. The next 24 assignments, from the nineteenth to the forty-second, both inclusive, are subject to the same objections, and some of them to additional objections. A fundamental question is raised in appellant’s brief complaining of the action of the court in refusing a peremptory instruction in behalf of appellant, but in this the court did not err, for under the evidence the case was one for the jury. Another question which may be said to be fundamental is that raised in the complaint that, although the jury in answer to special issues found that appellee had been damaged through appellant’s negligence in the separate sums of $300 and $500, the court rendered judgment in favor of appellee for only $300. We have considered this question at length, and have reached the conclusion that, although the court had no power or authority to render judgment in only partial conformity with the jury’s finding (Henne v. Moultrie, 97 Tex. 216, 77 S. W. 607), the appellant may not be heard to complain, since it was benefited rather than injured by this action. We have very carefully examined the record in the case, and, although the trial took an odd and more or less grotesque course, we cannot say that substantial justice has not been done. The judgment is affirmed.