Denman v. Pyle

KEY, O. J. R. P. Denman and E. B. Kelso brought this suit against O. P. Pyle, alleging that he resided in Bell county, and A. P. Williams and B. O. Sims, Jr., alleged to reside in Kleberg county. The defendant Sims filed a plea of privilege, claiming that the court' had no jurisdiction of his person, and that'he was entitled to a-change of venue to Kleberg county as to the cause of action asserted against him. The trial court gave a peremptory instruction, directing the jury to find in Sims’ favor on his plea of privilege, which the jury did, upon which verdict judgment was rendered, transferring the plaintiffs’ suit against Sims to the district court of Kleberg county. The case between the plaintiffs and the other defendants was submitted to the jury upon special issues, and upon the verdict returned, judgment was rendered for the plaintiffs, from which neither party has appealed. The plaintiffs have appealed from so much of the judgment as transfers their cause of action against the defendant B. O. Sims, Jr., from the district court of Bell county to the district court of Kleberg county. The correctness of that judgment depends entirely upon the correctness of the charge of the court upon that phase of the case; and appellants are in no position to complain of that charge, because of their-failure to comply with the provisions of article 1971 of the Revised' Statutes, as amended by Act 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971). That article was considered by our Supreme Court in' Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; and it was there held that, while the article as amended does not require a formal bill of exception to the charge of the court, it does require that in order to complain of such charge on appeal, it is necessary that objections thereto shall be presented to the' court before the charge is read to the jury; and it is there' declared that all .objections not so made and presented shall be considered.as waived. The tránscript contains the following document: “Come now the plaintiffs and except to the following.paragraphs of the court’s charge, to wit: ' “To paragraph - of the court’s charge the plaintiffs except for the following good and sufficient reasons, to wit: “First. The defendant O. P. Pyle is a necessary and proper party to said suit and resides in Bell county, Tex. “Second. ,Th^. pleadings and the evidence.show that O. P. Pyle and A.' P. Williams were partners in the transaction of the sale of land described in plaintiffs’ petition. “Third. The pleadings and evidence show that the defendants O. P. Pyle and A. P. Williams were' acting as agents for the said B. 0. Sims, Jr., in the sale of said lands, and that the plaintiffs are alleging, and have presented evidence to prove, that all defendants acted in concert in selling said lands, and that all are primarily liable for the commissions for selling said land, and that said B. O. Sims, Jr., promised and agreed to pay said money to plaintiffs herein. “Fourth. Because, the court having jurisdiction or venue of a necessary or proper party, the question of the liability of the nonresident party was a proper question to be submitted to the jury, under proper instructions from the court, and was not such a question as could be decided by the court. ' J. H. Evetts, Sam D. Ware. Filed Jany. 29, 1918. E. E. Upshaw, District Clerk, Bell Co., Texas.” Treating the document quoted as an objection to the court’s charge directing a verdict for the defendant Sims, still appellants are not entitled to have that action of the court .reviewed, because it does not affirmatively appear that the document referred to was ever presented to the trial court. The statute requires that such objections shall be presented to the trial judge before the charge is read to the jury; but in this case it is not made to appear that the objections, which were filed, were ever presented to the judge. Appellants have presented several assignments of error, but they are all predicated upon the alleged. error in the court’s charge directing a verdict for the defendant Sims, and they must all be overruled. The contention that the action of the court complained of constitutes fundamental error does not aid appellants’ cause. A failure to comply with the statute referred to results in a waiver of any error that can be waived, though such error may be fundamental. We see no reason why a litigant may not waive any error in a charge or instruction given to the jury, regardless of the importance or result of the error. The statute is as comprehensive as it could well be made; and, as it contains no exceptions, we think it must be construed to include fundamental as well as other kinds of error in a charge. The Legislature had the power to so frame the law, and the fact that one of the results is to deprive appellate courts of the discretion they formerly had to reverse cases on account of fundamental error in the trial court’s charge, though not complained .of on appeal, is no reason why the statute should not be enforced. The Legislature, having the power to enact the law in the form it has been enacted, and there-being-no ambiguity about its meaning, its wisdom should not be a matter of concern to the courts. - No reversible error has been pointed .out, and the judgment is affirmed. Affirmed. ‘ , ■