Fordyce v. Dixon
| Decision Date | 11 May 1888 |
| Citation | 8 S.W. 504 |
| Parties | FORDYCE v. DIXON <I>et al.</I> |
| Court | Texas Supreme Court |
Clark, Dyer & Bollinger, for plaintiff in error. Alexander & Winter, for defendants in error.
This action was originally brought by W. M. Dixon, with leave of the circuit court of the United States, against W. R. Woodward, receiver, appointed by that court to conduct the business of the Texas & St. Louis Railway Company, to recover damages for injuries alleged to have been received by his wife while a passenger on the train operated by the receiver. Woodward resigned, and the plaintiff in error was appointed to the receivership in his stead, and made party defendant. Dixon died pending the action, and his wife, in her own right, and as next friend for their minor children, prosecuted the action to final judgment. No exceptions were taken and acted upon to the making of parties plaintiff or defendant, and a judgment was rendered in favor of the plaintiffs. There is no statement of facts, and the assignments of error are not signed by counsel or the plaintiff in error. Rule 97 requires an assignment of error to be signed by the party or his counsel, and one not so signed cannot be considered. In this state of the record only errors fundamental can be considered. Although the damages to be recovered for injuries to the wife would have been community property, the cause of action did not cease upon the death of the husband. The wife and children doubtless succeeded to such rights as were held by the husband, and if they were not the proper parties to prosecute the existing cause of action, a matter which need not be considered, objection should have been made in proper time and manner. The charge of the court shows that the recovery was restricted to such cause of action as would survive the death of the husband. The permission of the circuit court of the United States to bring the action against its receiver would apply to the receiver appointed on the resignation of the receiver acting at the time the permission was given. If, however, this were not so, and it will be conceded that such permission should have been reobtained, the failure to get this would not be such error as to require a reversal of the judgment, in the absence of exceptions urged at the proper time and in proper manner, and in the absence of assignments of error.
There is no error apparent on the record requiring a reversal of the judgment, and it...
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...116 Tex. 489, 294 S. W. 844; Oar v. Davis, 105 Tex. 479, 151 S. W. 794; Lee v. Lewis (Tex. Com. App.) 298 S. W. 408; Fordyce v. Dixon, 70 Tex. 694, 8 S. W. 504; Harris v. Harris (Tex. Civ. App.) 44 S.W.(2d) 802; Farmers' Nat. Bank v. Dublin Nat. Bank (Tex. Civ. App.) 55 S.W.(2d) 567; Cates ......
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...not assigned, unless it be an error of law apparent upon the record, or, as it is frequently said, a fundamental error. Fordyce v. Dixon, 70 Tex. 694, 8 S. W. 504; Van Valkenburg v. Ruby, 68 Tex. 139, 3 S. W. 746; Railroad Co. v. Scanlan, 44 Tex. 649; Siese v. Malsch, 54 Tex. 356; Pfeuffer ......
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Bexar Bldg. & Loan Ass'n v. Newman
...that the assignment of errors is not signed by counsel, and this we find verified by the record. Under the authority of Fordyce v. Dixon, 70 Tex. 694, 8 S. W. 504, the cause stands here as without any assignments of error; and it follows that the judgment must be affirmed, unless there is s......
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