Allen v. Kitchen

• Court: Texas Court of Appeals
• Writing for the Court: Jenkins
• Citation: Allen v. Kitchen, 156 S.W. 331 (Tex. App. 1913)
• Decision Date: 19 February 1913
• Parties: ALLEN et al. v. KITCHEN et al.

156 S.W. 331

ALLEN et al. v. KITCHEN et al.

Court of Civil Appeals of Texas. Austin.

February 19, 1913.

On Motion for Rehearing, April 9, 1913.

Appeal from McCulloch County Court; Harvey Walker, Judge.

Action by C. D. Allen and others against R. D. Kitchen and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

J. E. Shropshire, of Brady, for appellants. Garnett & Hughston, of McKinney, for appellees.

JENKINS, J.

In this case the appellees object to our considering appellants' assignments of error, because they do not point out specifically any error committed by the court, and said assignments are in violation of rule 25, Rules for the Courts of Civil Appeals (142 S. W. xii), in that they do not refer to that portion of the motion for a new trial in which the supposed error is complained of, as required by said rule. Rule 24 requires that the assignment of error must distinctly specify the grounds of error relied on. Rule 25: "To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of in a particular manner, so as to identify whether it be the rulings of the court upon a motion, or upon any particular part of the pleadings, or upon the admission or rejection of evidence, or upon any other matter relating to the cause or its trial, or the portion of the charge given or refused, the fact or facts in issue which the evidence was incompetent or insufficient to prove, the insufficiency of the verdict or finding of the jury, if special, and the particular matter in which the judgment is erroneous or illegal, with such reasonable certainty as may be practicable, in a succinct and clear statement, considering the matter referred to, and must refer to that portion of the motion for new trial in which the error is complained of." (Italics ours.)

There is nothing in appellants' brief to indicate that any motion for a new trial was filed in the court below, for which reason the objection to said assignments is sustained, and the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

In 1906 C. D. Allen, J. C. Hall, and B. L. Craddock recovered judgment in the county court of McCulloch county against C. V. and E. P. Brown for $350 damages upon a car of oats purchased by Allen and others from the Browns, and which did not meet the warranty of the vendors as to quality. Said case was attempted to be appealed to this court, and upon motion of Allen et al. said appeal was dismissed, for the reason that the appeal bond, which was also a supersedeas bond, was not filed in the time required by law. 135 S. W. 602. Execution was issued out of the county court on said judgment and returned "No property found," and appellants then instituted this suit against the appellees herein on said bond. Upon trial before the court the court found that C. P. and E. V. Brown were solvent at the time of filing the supersedeas bond above referred to, but that during the pendency of said appeal they became insolvent.

The trial court, upon the above facts, found, as matter...