Brewer v. A. M. Blythe & Co.

• Decision Date: 28 June 1913
• Citation: Brewer v. A. M. Blythe & Co., 158 S.W. 786 (Tex. App. 1913)
• Parties: BREWER v. A. M. BLYTHE & CO.
• Court: Texas Court of Appeals

158 S.W. 786

BREWER v. A. M. BLYTHE & CO.

Court of Civil Appeals of Texas. Dallas.

June 28, 1913.

Rehearing Denied June 28, 1913.

Appeal from Kaufman County Court; Thos. R. Bond, Judge.

Action by A. M. Blythe & Co. against Henry Brewer. Judgment for plaintiffs, from which defendant appeals, and the judgment was affirmed. On motion for rehearing, motion overruled and judgment below affirmed.

Huffmaster & Huffmaster, of Kaufman, for appellant. Terry & Brown and Woods & Morrow, all of Kaufman, for appellees.

TALBOT, J.

A. M. Blythe & Co., a firm composed of A. M. Blythe, J. S. Woods, and Nestor Morrow, brought this suit to recover of appellant the sum of $571.50 for services as brokers alleged to have been rendered appellant in the sale of a tract of land. Appellant answered by a general demurrer, general denial, and plea of non est factum, denying that the written contract upon which appellees base their right to recover was executed by him or by his authority. A jury trial resulted in a verdict and judgment in favor of appellees for the sum of $400, and the appellant appealed.

At a former day of the present term we declined to consider appellant's assignments of error, because they were not in compliance with amended rule 24 and rule 25 (142 S. W. xii), prescribed by the Supreme Court for the government of the Courts of Civil Appeals, and affirmed the case. We were of the opinion, and so held, that appellant's assignments of error were not briefed in accordance with the rules mentioned, in that neither of them showed that the error complained of was distinctly set forth in a motion for a new trial in the lower court with a reference to the page of the transcript and particular clause of the motion in which the error was complained of. Appellant in due time filed a motion for a rehearing in this court, and under the decision of the Supreme Court of this state in the case of Railway Co. v. Beasley, 155 S. W. 183, rendered since the ruling of this court on the subject was made, our former opinion is withdrawn, and this opinion substituted therefor. In the case referred to the Supreme Court holds that rule 24, as recently amended, in so far as it requires objections to the giving or refusing of charges, and, in effect, to any other ruling which appears of record, to be set up in a motion for a new trial, is in conflict with articles 2061 and 2062 of the statute and the construction placed upon them by that court, and must be construed so as to harmonize with said articles of the statute and the former decisions of that court. This decision of the Supreme Court sets at naught the rule in the respect referred to, and the errors necessary to be complained of in a motion for a new trial in the court below in order to be available on appeal are practically the same as before said rule was promulgated. Such, therefore, of appellant's assignments of error as complain of charges given and refused by the trial court, and other rulings which under the statutes referred to must be considered as excepted to and which appear otherwise of record, are entitled to consideration, although no motion for a rehearing embracing the error therein complained of was presented in the court below. Under this construction of the statutes and rules, only appellant's first, second, and fifth assignments can be considered.

The first assignment...