Central Power & Light Co. v. Heder

• Decision Date: 15 November 1939
• Docket Number: No. 10617.,10617.
• Citation: 133 S.W.2d 795
• Parties: CENTRAL POWER & LIGHT CO. v. HEDER.
• Court: Texas Court of Appeals

Page 795

133 S.W.2d 795

CENTRAL POWER & LIGHT CO. v. HEDER.

No. 10617.

Court of Civil Appeals of Texas. San Antonio.

November 15, 1939.

Appeal from District Court, Bandera County; K. K. Woodley, Judge.

Action by Louis Heder against the Central Power & Light Company for damages allegedly resulting from the act of the defendant's agents in cutting down or mutilating trees growing in a pasture of the plaintiff. Judgment for plaintiff, and defendant appeals.

Affirmed.

Petsch & Usener, of Fredericksburg, for appellant.

Tynan, Davis & Scherlen, of San Antonio, and W. S. Ethridge, of Bandera, for appellee.

SMITH, Chief Justice.

In this case Louis Heder recovered judgment for $250 against Central Power & Light Company, for damages alleged to have been sustained by him as a result of the acts of the corporation's agents in cutting down or mutilating trees growing in Heder's pasture in Bandera County. The corporation has appealed.

Appellant's original briefs filed in this Court do not include any character of assignments of error, and its propositions consist only of abstract statements of what appellant conceives to be the law applicable to the case. In his reply brief appellee points out the absence of assignments of error from appellant's brief, and objects to consideration of the points sought to be raised by appellant in its propositions of law.

It is well settled that in the absence of assignments of error from an appellant's brief, Courts of Civil Appeals are without authority to consider any errors in the record except those which are fundamental and require consideration on appeal even though not assigned by the party appealing. Art. 1757, R.S.1925, as amended by the Acts of 1931, 42 Leg. p. 68, Ch. 45, § 1, Vernon's Ann.Civ.St. art. 1757; Art. 1844, R.S.1925, as amended by the Acts of 1931, 42 Leg. p. 117, Ch. 75, § 1, Vernon's Ann.Civ.St. art. 1844; 3 Tex Jur. p. 835, § 588; Lamar-Delta Dist. v. Dunn, Tex.Com.App., 61 S.W.2d 816; Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270; Blackmon v. Trail, Tex.Com. App., 12 S.W.2d 967; Natkin Engineering Co. v. Aetna Co., Tex.Com.App., 37 S.W.2d 740; Western Union Life Co. v. Ensminger, Tex.Civ.App., 103 S.W.2d 162; Bartlett v. Gulf Production Co., Tex.Civ. App., 64 S.W.2d 816; National Life & Accident Ins. Co. v. Patterson, Tex.Civ. App., 94 S.W.2d 189; Sweatt v. Tarrant Co., Tex.Civ.App., 108 S.W.2d 700; Commercial Credit Co. v. Williams, Tex.Civ. App., 87 S.W.2d 499; Miller v. Fenner, Tex.Civ.App., 89 S.W.2d 506; Guaranty Mtg. & Realty Co. v. L. E. Whitham, Tex. Civ.App., 93 S.W.2d 512; Adams v. Jones, Tex.Civ.App., 107 S.W.2d 450, 454; Gavin v. Webb, Tex.Civ.App., 99 S.W.2d 372, 373; Texas & P. Ry. v. Leach, Tex.Civ. App., 106 S.W.2d 836; Peck v. Morgan, Tex.Civ.App., 156 S.W. 917; Pure Oil Co. v. Pope, Tex.Civ.App., 75 S.W.2d 175; St. Louis, S. W. Ry. v. Packing Co., Tex. Civ.App., 253 S.W. 864; Glover v. Houston Belt & T. R. Co., Tex.Civ.App., 163 S.W. 1063, Id., Tex.Com.App., 213 S.W. 597; Greene Gold-Silver Co. v. Silbert, Tex.Civ. App., 158 S.W. 803; Rutt v. Cravens, Tex. Civ.App., 72 S.W.2d 312; Gelfand v. Heath, Tex.Civ.App., 124 S.W.2d 1017.

Under the authorities cited it seems that in the absence of assignments of error from appellant's brief, the appellate court is "without authority" or discretion to revise the action of the trial court, except upon fundamental error, or, quoting from an opinion by Judge Speer in Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844, 846, quoted and reaffirmed in an opinion by Judge Critz in a subsequent case: "Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power." Natkin Engineering Co. v. Aetna Casualty & Surety Co., Tex.Com.App., 37 S.W.2d 740.

As stated, no assignments of error, nor anything purporting to be such, were included in appellant's brief. It is true, appellant briefed its case on certain propositions, but in those propositions it does not purport to complain of any specific rulings of the court such as might be construed in our discretion as assignments of error, but simply pronounced in general terms certain abstract statements of what appellant conceived to be the law applicable to the case. Such propositions cannot be given effect as assignments of error as contemplated by the statute and the decisions thereunder. It is so held in many of the authorities cited above. As was said by Judge Speer for the Commission of Appeals in Clonts v. Johnson, supra, and quoted with approval in Natkin v. Aetna, supra : "There is a substantial difference between an assignment of error and a proposition submitted thereunder. The one complains of some action of the court, and the other merely sets forth the reasons why such action is erroneous. It takes the assignment to reach the ruling, and it is the ruling that is to be reviewed by the appellate court. [Citing authorities.]

"It follows from the above holding that the Court of Civil Appeals was without authority to pass on anything in this case except fundamental error."

Appellant, without citing authorities, contends that the foregoing rules and the statutes and decisions supporting them were superseded by the enactment of Art. 1844, as amended by the Acts of 1931, and that, therefore, it was not necessary to set up any assignments of error in its brief. There is no merit in this contention, for it has been repeatedly held by the Supreme Court and Courts of Civil...