Edwards v. Youngblood
| Decision Date | 18 October 1913 |
| Citation | 160 S.W. 288 |
| Parties | EDWARDS v. YOUNGBLOOD. |
| Court | Texas Court of Appeals |
Appeal from Wilbarger County Court; J. B. Copeland, Judge.
Action between C. H. Edwards and T. J. Youngblood. From a judgment in favor of the latter, the former appeals. On motion to strike the assignments of error. Granted.
See, also, 160 S. W. 289.
Cecil Storey and L. P. Bonner, both of Vernon, for appellant. W. D. Berry, of Vernon, for appellee.
Appellee, by motion, requests this court to strike out the assignments of error which are filed separate from motion for new trial. This case is appealed from the county court of Wilbarger county, Tex., which convened April 7, 1913, and adjourned April 26, 1913. At that term of the court, on the 24th day of April, 1913, appellee obtained judgment against appellant. The trial judge, on the same day, filed his findings of fact and conclusions of law, to which appellant duly excepted. On the 25th day of April, appellant filed and presented his amended motion for new trial. In the order overruling the motion for new trial appellant excepted to the action of the court and gave notice of appeal and also entered therein his exceptions to the court's findings and conclusions. Appellant on the 17th day of June filed assignments of error, which are the assignments copied in his brief and presented as grounds upon which to reverse this case. Upon an examination of the assignments of error and the assignment contained in the motion for new trial, we find that the assignments of error which appellee requests be stricken out are not the same as the assignments contained in the motion for new trial in form, and in but few particulars in substance. Article 1612, R. S. 1911, was amended by the Thirty-Third Legislature, page 276 of the Acts thereof, and took effect April 4, 1913. This article, as amended, provides: "That where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error." Before the amendment, rules 24 and 25 for the Courts of Civil Appeals (142 S. W. xii) required the assignments of error to "refer to that portion of the motion for a new trial in which the error is complained of," "and distinctly set forth in the motion for a new trial." The courts have frequently referred to these rules in passing on assignments, and suggested that the purpose was to require the complaining party to present the issues in the trial court relied on for reversal. Frequently, before these rules, issues were presented by assignments which had not been called to the attention of the trial judge. Some have regarded this practice as unfair, resulting in reversals on questions not thought of or presented in the court below. Doubtless it was some such evil our Supreme Court sought to remedy by the promulgation of the rules above mentioned. The Legislature, by amendment, has emphasized this purpose. This law curtails labor and cost, and requires the presentation of the very question in the appellate court that was presented in the trial court. It relieves the appellate court from a search through long and involved motions for new trial and a comparison of each assignment therewith. It is not an infrequent occurrence that one party will contend the assignment presents a question not assigned in the motion for new trial, while the other will assert it was so presented, and the court is thus called upon to make a careful and critical comparison. This case illustrates the difficulty which frequently confronts the appellate courts when it is sought to ascertain whether it was distinctly set forth in the motion for new trial. Aside from the above suggestions, we regard that part of the law providing that "The assignments therein (the motion for new trial) shall constitute the assignments of error" as mandatory. It does not vest us with discretionary power in determining what shall constitute the assignments. We are not at liberty to disregard this plain mandate of the law. As we view the case, we must sustain the motion and strike out the instrument indorsed "Assignments of error" and copied in the brief of appellant.
Appellant suggests that the findings of fact and conclusions of law are often filed after the judgment and the motion for new trial, and therefore the assignments assailing the findings of the trial court should be entertained. Such is not the fact here, but if it were, we see no reason why the rule should be different.
The exception to the judgment of the court is sufficient to authorize the appellant to assail...
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...Civil Appeals where they have so held from the very time said statute was passed and said rule exacted down to this date. In Edwards v. Youngblood, 160 S. W. 288 the Court of Civil Appeals, at Amarillo, after citing rules 24 and 25 for the Court of Civil Appeals, and the said amended articl......
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Hardwicke v. Trinity Universal Ins. Co., 1482.
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