Knott v. Baldwin

LANE, J. This suit was brought- by Mrs. Jacob C. Baldwin .and J. A. Shine against A. R. Knott to recover damages which they allege they suffered by reason of the action of A. R. Knott in tearing down a certain drilling rig, which was being used by plaintiffs in drilling for oil, and in otherwise damaging the oil well then being drilled by plaintiffs. Defendant Knott answered by general denial and by averring that the drilling rig belonged to him. He admitted that he had leased the same to plaintiff Shine under certain stipulated conditions, but avers that the rig was returned to him, and, without authority, plaintiffs thereafter took possession of the same and therewith began to drill an oil well, and that as soon as he discovered that plaintiffs were so unlawfully using his rig he proceeded to remove the same from plaintiffs’ premises and to- take possession thereof, as he had the right to do. He also alleges that Shine obtained the lease of the rig by practicing fraud upon him. He specially denies that in removing his rig from the *480 well being drilled by plaintiffs be damaged such well, as alleged by plaintiffs. By cross-action be alleges that plaintiffs bad wrongfully taken and kept possession of bis rig, to bis damage in tbe sum of $7,500. Plaintiffs by supplemental petition denied generally tbe averments of tbe defendant’s answer. The case was tried by a jury to which tbe court submitted special issues, all of which that were required to be answered were answered in favor of the plaintiffs, and upon such answers tbe court rendered judgment for tne plaintiff for the sum of $1,400. Erom such judgment defendant A. R. Knott has appealed. For convenience we shall refer to the respective parties as appellant and appellees. At tbe threshold we are met with objections, urged by appellees,, to a consideration of any of appellant’s assignments of error found in his brief, upon the grounds that none of them were filed in the trial court and are not assignments of error set forth in appellant’s motion for new trial, and that the assignments set forth in the motion for new trial are not brought forward in appellant’s brief. We have examined the record and find that appellant filed no assignments. in the trial court, but that he did file a motion for new trial, which was overruled by the court. Neither true nor substantial copies of any of the assignments of error as set forth in the motion for new trial are set out in appellant’s brief. We feel that, in view of the well-settled rule that, where appellants fail to file in the trial court assignments of error, or to copy into their briefs the assignments of error as set forth in their motions for new trials, appellate courts can only consider fundamental errors, we must sustain appellees’ objection to a consideration of the assignments found in appellant’s brief. Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844, 846; Ford & Damon v. Flewellen (Tex. Civ. App.) 264 S. W. 603; Id. (Tex. Com. App.) 276 S. W. 903; Bristol v. Noble Oil & Gas Co. (Tex. Civ. App.) 273 S. W. 946; Carrera v. Hines (Tex. Civ. App.) 246 S. W. 1057; Lumbermen’s Reciprocal Ass’n v. Ryan (Tex. Civ. App.) 299 S. W. 701, 702; Bray v. City of Corsicana (Tex. Civ. App.) 280 S. W. 609, 610; Beech Hill Distilling Co. v. Tolivar (Tex. Civ. App.) 288 S. W. 254; O’Neal v. Allison (Tex. Civ. App.) 10 S.W.(2d) 257, 259. In the case of Clonts v. Johnson, supra, appellant filed no assignments of error in the trial court. He did file a motion for new trial, which was overruled, but the assignments of error set forth in the motion were not copied in appellant’s brief. In that case the Commission of Appeals held that the ap- pellate court could only consider fundamental error, saying: “Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power.” Since we are, under the facts as disclosed in the record of this case, restricted to a consideration of questions duly assigned as error, and such fundamental errors as appear of record, and since no errors have been duly assigned and no fundamental error appears, it becomes our duty to affirm the judgment, even though we may think the ends of justice would require a different judgment, and it is accordingly so ordered. Affirmed.'