Chicago, R. I. & G. Ry. Co. v. Pemberton

• Decision Date: 03 December 1913
• Citation: Chicago, R. I. & G. Ry. Co. v. Pemberton, 161 S.W. 2 (Tex. 1913)
• Parties: CHICAGO, R. I. & G. RY. CO. v. PEMBERTON.
• Court: Texas Supreme Court

161 S.W. 2

CHICAGO, R. I. & G. RY. CO. v.PEMBERTON.

Supreme Court of Texas.

December 3, 1913.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Henry Pemberton against the Chicago, Rock Island & Gulf Railway Company.A judgment for plaintiff was affirmed by the Court of Civil Appeals(155 S. W. 652), and defendant brings error.Reversed and remanded to the Court of Civil Appeals.

Lassiter, Harrison & Rowland, of Ft. Worth, and Bennett Hill, of Dallas, for plaintiff in error.W. L. Crawford, Jr., and Carden, Starling, Carden & Hemphill, all of Dallas, for defendant in error.

PHILLIPS, J.

The plaintiff in error was the appellant in the honorable Court of Civil Appeals, and, on the appeal of the case, filed in that court its brief submitting four assignments of error.The court declined to consider any of the assignments, for the reason, as stated in its opinion, that none of them complied with rules 23,24, and25 prescribed by this court(142 S. W. xii) for the preparations of briefs, in that the brief failed to point out the page of the transcript where the alleged error was called to the attention of the trial court in a motion for new trial, or to anywhere point out the page of the transcript where the motion for a new trial was to be found, and affirmed the judgment of the trial court.

Objection is made by the defendant in error to our reviewing the action of the Court of Civil Appeals, upon the ground that the petition for the writ of error, as did the motion for rehearing, complains only of the "overruling" of the assignments as distinguished from the refusal to consider them.While they were not expressly overruled, the effect of the court's action upon the appeal amounted to that result.The appellant was at liberty, therefore, to treat them as overruled, and its assignments of error in the motion for rehearing and petition for writ of error, so framed, sufficiently challenge the ruling.We are not disposed, at all events, to deny them consideration because not couched in exact and technical phrase.

The first assignment of error presented in the brief of the plaintiff in error in the Court of Civil Appeals is as follows: "The court erred in overruling defendant's motion for a new trial on the first ground stated therein, to wit, that the verdict of the jury was excessive, and in overruling defendant's motion for a new trial, for this reason, as stated in the first paragraph thereof."Under it the following proposition is submitted: "A fair consideration of the evidence in this case shows that the plaintiff's injury was comparatively inconsiderable, and that the verdict is grossly excessive."To the proposition is subjoined a statement of the testimony, constituting nearly three pages of the brief, in which at intervals reference is made to the pages of the statement of facts by number.Each of the other three assignments of error concludes with substantially the same sentence as the first assignment, containing in each instance a reference by number to the paragraph of the motion for a new trial where the same ground of error is presented.It is true that the page of the transcript for the particular paragraph of the motion is not given in any assignment, or in the statement under it.Nor does the brief anywhere designate the page of the transcript where the motion for a new trial may be found.But this was not necessary in our opinion under either of the rules upon which the honorable Court of Civil Appeals predicates its refusal to consider the assignments.

Rule 23 provides that the record shall contain an assignment of errors as required by the statute.It makes no reference to the motion for a new trial.In rule 24 it is provided that the ground of error presented in an assignment must have been set forth in the motion for a new trial; otherwise it will be considered as waived unless it be fundamental in its nature.And under rule 25 it is required that the assignment refer to that portion of the motion for a new trial where the same error is complained of.The purpose of rules 24and25 in their relation to the motion for a new trial is obvious.It is, first to confine the appellant in the Court of Civil Appeals to the submission of only such grounds of error as were brought to the attention of the trial court in the motion; second, to assure the Court of Civil Appeals that the error assigned was urged in the motion; and, third, to enable the court to verify their identity.It is plain, however, that the rules do not require that the brief furnish the court any further means for such verification than "the reference" in the assignment "to that portion of the motion for a new trial in which the error is complained of," as is stated in rule 25, since they make no other provision in that respect.There is no suggestion that, in addition to the reference to that portion of the motion complaining of the error, required by rule 25, there shall also be given the page of the transcript containing such part of...