Simonton v. Forrester

Walker, J. This action was brought in the district court by Wm. Forrester againgt Susan D. Simonton, as the administratrix of the estate of Robert S. Simonton, deceased, and P. J. Willis & Brother. The cause was tried by a jury upon special issues; the findings are [585] somewhat indefinite, and are not, perhaps, so exactly responsive to the issues submitted as they should have been. They were understood by the court, however, to entitle the plaintiff to a verdict in an amount about one-half of that claimed by the plaintiff. We shall not disturb this verdict, for reasons often given by this court. In Ward & Co. v. Bledsoe & Clarkson, 32 Texas, 251, the court say, “it has. been the constant and unvarying practice of this court never to disturb the verdict of a jury if, at the trial, any evidence was adduced on which it could have been found. It is only in cases where the verdict appears at first blush to be palpably wrong, oppressive, unjust, and subversive of legal right, that a court is justified in setting it aside, unless there has been misdirection of the jury by the court.” This language states the rule very strongly in its application to this court, and must not be held to apply to the district courts; and we here take occasion again to remark, that unless the district courts are governed by a more liberal rule in granting new trials, for any and every cause which may be justly and legally assigned, we shall be under the necessity, in order to meet the ends of justice, to abolish the rule as above stated, in our adjudications, and apply the principle which should apply in the nisi prius courts. But in the case at bar, this relaxation of the rule is not invoked, for the verdict is fairly supported by the evidence. Were we disposed to treat the assignments for error as well taken, we should nevertheless hold ourselves excused from considering them, and the more so from the fact that this appeal is brought before us under the management of able and experienced counsel; and yet the record shows a total neglect, in the non [586] observance of Rule Ho. 27, governing bills of exception to the rulings of the district court; and in order that the rule may again be brought to the attention of the profession, and that our reason for declining to give an opinion on the merits of the exceptions may be clearly understood, we here recite the rule, to-wit: “All bills of exceptions to the admission or rejection of evidence, or taken for any other purpose, must not only state distinctly the ruling of the court complained of. but also the ground of objection, specifically and particularly, as taken in the court below; and any bill of exceptions not drawn in accordance with this rule will not be considered by the court.” This rule is but a reannouncement of a rule which has uniformly governed the practice of this court, and, we might add, almost every other court of last resort. (See Dunham v. Forbes, 25 Texas, 23; Scott v. The State, 25 Texas, Sup., 649; Grimes v. Salmon, 16 Texas, 211; Jones v. Thurmond, 5 Texas, 318; Harlan v. Baker, Dallam, 578.) The bills of exception in this case simply tell us that the court ruled so and so; but under what circumstances, what facts were presented, or what principle of law invoked, we are left entirely to conjecture. It is intimated that the charge of the court, being six pages in length, for this and other reasons, is erroneous, but in what other respect than for its great length, we are not informed; and though counsel are somewhat hypercritical upon this charge, there is no bill of exceptions found in the record, even to its length. We are not disposed strenuously to insist upon a technical observance of every rule of practice, and especially should a case present itself in which strong equity should ask for a relaxation of the rule ; but we have examined this record of ninety pages, without the aid of proper bills [587] of exception, in order to determine for ourselves whether' such a case was herein presented, and we think there1 is not. The judgment of the district court is affirmed. Affirmed.