Bexar Bldg. & Loan Ass'n v. Newman

• Decision Date: 01 February 1894
• Citation: 25 S.W. 11
• Parties: BEXAR BLDG. & LOAN ASS'N v. NEWMAN et al.
• Court: Texas Supreme Court

Page 11

25 S.W. 11

BEXAR BLDG. & LOAN ASS'N v. NEWMAN et al.

Supreme Court of Texas.

February 1, 1894.

Certified question from court of civil appeals of fourth supreme judicial district.

In the matter of the appeal of the Bexar Building & Loan Association against Esther Newman and others. Question of practice certified by the court of civil appeals.

William Aubrey, for appellant. Leo Tarleton, C. A. Keller, and Summerlin, Wise & Halton, for appellees.

BROWN, J.

The court of civil appeals of the fourth supreme judicial district has certified to this court the following question: "Question. The assignment of errors which was filed in the district court on May 19, 1889, is not signed by counsel. Briefs have been filed on behalf of both parties, and appellees have in their brief discussed the matters presented by appellant in its brief under the assignments. But appellees, in their briefs, raise the question of the sufficiency of the assignment of errors. Is this court authorized to consider the assignment of error?"

Looking to the briefs which have been sent up, we find that appellant's counsel prepared a brief in this case, setting out the assignment of errors with appropriate propositions, which was signed by counsel, and filed in the office of the clerk of the district court March 9, 1892, and in the supreme court April 25, 1892, that being the return term of the court at that time. Appellees filed a brief, in which they discussed the propositions in appellant's brief under the different errors as assigned. At the close of one of the appellees' briefs, the objection is made that the assignment of errors is not signed by appellant's counsel. Article 1037 of the Revised Statutes prescribes what is to be done by the appellant or plaintiff in error in preparing and filing an assignment of errors. It does not require that the assignment should be signed either by the party or his attorneys. In the year 1877, the supreme court made and published "Rules and Regulations" for the government of the courts of the state. No. 97 of the "Rules for the District Courts," so far as it is applicable to this question, is as follows: "The appellant or plaintiff in error shall file in the district court, at the time of filing a bond or affidavit for appeal or bond for writ of error, an assignment of errors, signed by the party or his counsel, prepared in accordance with the statutes and with the rules of the supreme court in relation thereto." After the courts were organized under the amendment to the constitution adopted in 1891, the supreme court made and published new rules and regulations, or rather a revision and amendment of those before published, in which No. 101 of the "Rules for the District Court" prescribes what shall be done in preparing an assignment of errors, in these words: "Appe...