Murphy v. Earl

PETICOLAS, C. J. This was a suit tried before a jury in the county court of El Paso county, Tex., by John H. Murphy against E. W. Earl for failure to perform a contract of sale by the execution of a deed, resulting in a judgment on January 22, 1912, in favor of E. W. Earl. There is no motion for a new trial in the record. The assignments of error are addressed to the overruling of one of plaintiff’s special exceptions to error in giving a certain special charge, to error in giving certain paragraphs of the main charge, and in refusing to give a special charge requested by plaintiff. [1] Among the rules adopted regulating practice in the Courts of Civil Appeals, which went into effect January 1, 1912, is rule No. 24 (142 S. W. xii), which is as follows: “The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.” We find no error so fundamental as that the court would act upon it without an assignment of error. The judgment is one that could legally have been rendered in the lower court and affirmed in the appellate court, and as the rule quoted provides that each assignment of error must distinctly specify the grounds of error relied on and set forth in the motion for a new trial, and that a ground of error not distinctly set forth in the motion for new trial shall be considered as waived, it follows that each and all of these assignments of error must be treated in this court as having been waived; and, there being no fundamental error, the ease must be affirmed without an in'quiry into its merits, and it is so ordered.