Cornelius v. Harris

• Citation: 163 S.W. 346
• Parties: CORNELIUS v. HARRIS.
• Decision Date: 03 January 1914
• Court: Texas Court of Appeals

163 S.W. 346

CORNELIUS v. HARRIS.

Court of Civil Appeals of Texas. Amarillo.

January 3, 1914.

Rehearing Denied February 7, 1914.

Appeal from District Court, Armstrong County; Jas. N. Browning, Judge.

Action by C. H. Harris against R. L. Cornelius. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.

Hugh L. Umphres, of Amarillo, and Fayette Ratliff, of Panhandle, for appellant. J. S. Stallings, of Claude, and Synnott & Underwood, of Amarillo, for appellee.

HUFF, C. J.

The judgment in this case was rendered April 17, 1913, and assignments of error filed July 15, 1913. The case was tried before the court without a jury. There are no conclusions of fact and law filed by the trial judge, and no motion for new trial filed in the court below. The case is in this court on a statement of facts, pleadings, judgment, and assignments of error thereon. The appellant excepted to the judgment of the court, and had the same entered in the judgment, and gave notice of appeal.

The appellee has filed his motion to strike out the assignments of error which were filed in this court more than 30 days after the record was filed herein, and also objects to the assignments in the brief because no motion for new trial was filed in the trial court.

The judgment and appeal herein were taken after article 1612, R. S. 1911, was amended by the Thirty-Third Legislature, c. 136, p. 276, and which took effect April 4, 1913. As amended, the article reads: "The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript or record from the clerk's office: Provided, that where a motion for new trial has been filed the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error: And provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of." On the 25th day of June, 1913, the Supreme Court amended the rules. Rule 101 (159 S. W. xi): "The appellant or plaintiff in error shall file his assignments of error in the trial court as provided by article 1612 of the Revised Civil Statutes of 1911, as amended by chapter 136 of the Acts of the Thirty-Third Legislature," etc.—and added rule 101a (159 S. W. xi): "In all cases in which a motion for a new trial is filed the assignments contained in such motion or amended motion as finally ruled upon by the trial court shall constitute the assignment of error. All error not distinctly specified in such motion, or in the assignments of error when motion for a new trial is not filed, shall be waived." (Underscoring ours.) Certainly there can be no doubt that the Legislature, as well as the Supreme Court, recognized that, where there is no motion for new trial, assignments of error can be filed in the trial court and brought up in the transcript. It is urged that rule 71a (145 S. W. vii), added to the rules as amended January 24, 1912, required a motion for a new trial before appeal. The rule in part is: "A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, * * * except in such cases as the statute does not require a motion for a new trial." The statute, as amended, permits assignments to be filed when there is no motion for new trial, as we interpret the statute and the amended rules above set out.

Article 1991, R. S. 1911: "It shall be sufficient for the party, excepting to the conclusions of law or judgment of the court, to cause it to be noted on the record in the judgment entry that he excepts thereto; and such party may thereupon take his appeal or writ of error without a statement of facts or further exceptions in the transcript; but the transcript shall in such case contain the special verdict or conclusions of fact and law aforesaid and the judgment rendered thereon." If the party excepts to the judgment entry he is entitled to appeal and may take the case upon a statement of facts and is not required to maintain his right of appeal to have filed conclusions of fact and law. The statute gives the right of appeal upon the proper exception being noted. The appellant in this case excepted to the judgment and had the same entered in the judgment. Greer v. Featherston, 95 Tex. 654, 69 S. W. 69. In the above case the Supreme Court said, in answer to certified questions from the Second district: "No motion for new trial is necessary to authorize the attorneys and the court to make up and sign the statement of the facts upon which the judgment is based; and, when the facts are thus stated, the record is sufficiently complete to enable the appellate court to decide whether, under the most favorable view of the facts, the successful party was entitled to the judgment entered. The question propounded to us may be expressed thus: Upon this statement of facts, should the court have instructed the jury to find a verdict for the defendant? This presents a question of law, and there could not possibly be any reason to make a motion for a new trial, because the court must have passed upon every phase of the evidence that could arise." As we gather from the report of that case in 95 Tex. 654, 69 S. W. 69, and 68 S. W. 48, there was no conclusion of facts and law filed in the trial court. This case we also think established that, upon excepting to the judgment, the aggrieved party had the right of appeal upon a statement of facts.

Whatever may be the construction placed on rule 71a for the district courts (145 S. W. vii) and rules 24 and 25 for Courts of Civil Appeals (142 S. W. xii) as to the assignments of error, we think, under the present statute and rules heretofore quoted, assignments of error may be filed when there is no motion for new trial. Under Greer v. Featherston, supra, appellant may, we think, assail the judgment rendered on the ground that, as a matter of law, the evidence is not sufficient to support the same. The Supreme Court said, in the case of Railway Co. v. Beasley, 155 S. W. 183, that that court could not by a rule set aside the statute, and the rules must be construed to harmonize with the statute and the former decisions of the Supreme Court. We believe that in the holding that assignments filed where there is no motion for new trial, calling in question the sufficiency of the evidence as a matter of law, may be considered and is in harmony with the statute and the decisions of the Supreme Court. Telegraph Co. v. Mitchell, 89 Tex. 441, 35 S. W. 4; City of Austin v. Forbis, 99 Tex. 234, 89 S. W. 405. We have therefore concluded it to be our duty to consider such assignments which may properly call in question the judgment of the court.

This is a suit brought by C. H. Harris, the appellee, against R. L. Cornelius, appellant, in the district court of Armstrong county, alleging a breach of the contract and for damages. The contract entered into between the parties is as follows: "This memorandum of agreement made this October 31st, 1911, by and between R. L. Cornelius of Panhandle, Texas, party of the first part, and C. H. Harris of Groom, Texas, party of the second part, witnesseth: Party of the first part, for and in consideration of the premises hereinafter contained, has this day bargained, sold and agreed to deliver to party of the second part, and by these presents does hereby agree to sell and convey to the party of the second part, the following described land and real estate, situated in Armstrong county, Texas, and described as survey No. 81, in block B3, in said county, and located by certificate No. 15—3317, H. & G. N. Railroad Company original grantee, and containing six hundred and forty acres of land, more or less. (1) In consideration of the above-named conveyance, party of the second part covenants and agrees to pay to the party of the first part the sum of $500 on or before the 1st day of March, 1912, or to execute and deliver to said party of the first part in lieu therefor a good bankable note for said amount to be approved by party of the first part. (2) Said party further agrees to pay $2,700.58 on or before September 1st, 1912, as the second payment. As the third payment said party of the second part agrees to pay $1,600.29 on the 1st day of September, 1913, and $1,600.29 on the first day of September, 1914, all of said respective amounts to bear interest at the rate of ____ per cent. per annum interest payable annually. For said last two amounts party of the second part agrees to execute and deliver to said party of the first part his vendor's lien notes. Party of the second part further agrees to thresh and deliver to said party of the first part two-thirds of his one-third part of sorghum now growing on said land, or the proceeds of same, as soon as same can be threshed. Party of the second part finally agrees to pay all back taxes on said land including the tax for the year 1911, to settle all attorney's fees now due and owing to one Fayette Ratliff in bringing and prosecuting a suit of foreclosure against said land in the district court. It is further agreed that said party of the first part shall execute and deliver deed conveying the afore-described land on the first day of September, 1912, provided party of the first part has in all things complied with his part of this contract, otherwise, this...