Oil Well Supply Co. v. Marchman

WILLSON, C. J. (after stating the facts as above). We are not satisfied it was error to grant the new trial on the grounds specified in the trial court’s order (Conlisk v. Bender [Tex. Civ. App.] 245 S. W. 941; Harvey v. Ry. Co. [Tex. Civ. App.] 261 S. W. 197; Gulf, C. & S. F. R. Co. v. Harvey [Tex. Com. App.] 276 S. W. 895; Id. [Tex. Com. App.] 278 S. W. 839; Coons v. Culp [Tex. Civ. App.] 278 S. W. 914); but, if we were, we would not disturb the judgment, for, as we view the record, there is nothing in it showing the new trial should not have been granted on other grounds of the motion. If it should have been, then, without respect to whether it should have been granted on the grounds specified by the trial court or not, the judgment is not erroneous, and should not be disturbed by this court. We do not think a presumption that the trial court considered and overruled the other grounds of the motion should be indulged, for, having determined that appellee was entitled to a new trial because of argument of counsel and conduct of the jury, there was no reason why the court should have considered other grounds of the motion. If we were called upon to determine whether other grounds of the motion should have been sustained or overruled, we could not do so, for the record sent to this court was not accompanied by a statement of facts. The burden was on appellants to show error in the judgment entitling them to have it reversed here, and we do not think they have done so. In Missouri, and perhaps in other states, it is held that the effect of specifying the grounds upon which a new trial is granted is to overrule all other grounds of the motion (James v. Butcher [Mo. App.] 215 S. W. 767; Dietrich v. Ice Co. [Mo. Sup.] 286 S. W. 38); but in that state there is a statute which requires the court to specify the grounds upon which he grants a new trial (Stoner v. Royar, 200 Mo. 444, 98 S. W. 601). There is no such statute in this state, and we see no reason why an appellant seeking a reversal of a judgment granting an appellee a new trial should not be required to show error, as he must in other eases, before he is entitled to have the judgment he complains of set aside. Ry. Co. v. Thomason (Tex. Civ. App.) 280 S. W. 325; Kauffman v. Maier, 94 Cal. 269, 29 P. 481, 18 L. R. A. 124; Lumber Co. v. Westerfield, 26 Nev. 332, 67 P. 961, 69 P. 899; In re Boyd, 199 Mass. 262, 85 N. E. 464; Weisser v. Ry. Co., 148 Cal. 426, 83 P. 439, 7 Ann. Cas. 636. The judgment is affirmed.