Equipment Co. v. Luse

• Court: Texas Court of Appeals
• Writing for the Court: Smith
• Citation: Equipment Co. v. Luse, 250 S.W. 1104 (Tex. App. 1923)
• Decision Date: 04 April 1923
• Docket Number: (No. 6925.)
• Parties: EQUIPMENT CO. v. LUSE et al.

250 S.W. 1104

EQUIPMENT CO. v. LUSE et al.

(No. 6925.)

Court of Civil Appeals of Texas. San Antonio.

April 4, 1923.

Rehearing Denied May 2, 1923.

Appeal from Tarrant County Court; W. P. Walker, Judge.

Action by the Equipment Company against A. F. Luse and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Bryan, Stone & Wade, C. Hyer, and Alfred H. Eaton, all of Fort Worth, for appellant.

Moses, Rowe & Braly, John S. Morris, and H. D. Payne, all of Fort Worth, for appellees.

SMITH, J.

The appeal is based upon eleven assignments of error, which are set out at the "back" of the brief, as provided in rule 32 (142 S. W. xiii); but none of these assignments "refer to that portion of the motion for new trial in which the error is complained of," as required by rule 25 (142 S. W. xii). This omission has been repeatedly held to be fatal, relieving an appellate court of any obligation to consider such assignments; and while we have in no case upon our own motion disregarded assignments on this account, we do not feel at liberty to consider them in this case over the objections of appellees, who have filed a vigorous motion to strike them out, not only upon the ground stated, but upon various other grounds, some of which also are well taken. Sullivan v. Masterson (Tex. Civ. App.) 201 S. W. 194; Tel. Co. v. Golden (Tex. Civ. App.) 201 S. W. 1080; Fahey v. Benedetti (Tex. Civ. App.) 161 S. W. 896.

No fundamental error being apparent of record, and the assignments of error being disregarded, the judgment must be affirmed.

On Motion for Rehearing.

In deference to the able and earnest motion for rehearing filed by appellant's counsel, we deem it proper to further discuss the question of the sufficiency of appellant's brief. It is not the desire or purpose of this court to shirk or evade the responsibility of determining questions properly presented to it by litigants, nor is it its policy to disregard assignments, propositions, or statements of parties merely because of the violation or disregard of some rule or rules in the preparation of briefs, or presentation of the appeal. Briefs are designed to aid courts in the dispatch of business, and should be so prepared and should so present the questions to be reviewed as to facilitate such review. When briefs do not serve this end, but tend to retard the appellate court in the performance of its duty to the state and the public, then it becomes the duty of such court to determine whether or not it is warranted in seizing upon a clear infraction of the rules by a litigant as a reason for disregarding the latter's brief.

Even under the current rules it ought not to be difficult for the lawyers to clearly and succinctly present their causes for review. Under the rules recently superseded, it was the simplest matter in the world for litigants to present each assignment of error, proposition, statement, and authorities, respectively, so that the question raised was bared in simplest form to the reviewing authority. Each was set out with reference to its relation to the other, and all were connected and co-ordinated into a compact presentation of the one question raised by the assignment. It is difficult to perceive the possibility of an improvement of the system. We take the liberty of suggesting to the members of the bar that the present rules do not affirmatively banish the old system of briefing cases. It is true that in literally following the present rules, all the assignments of error must be grouped and placed at the extreme "back" of the brief, and all the propositions must be grouped and placed at the "front" of the brief, thus separating them so as to render impracticable the process of comparing them for the purpose of determining the relevancy and relationship of each to the other. But counsel in preparing their briefs may very easily remedy this incongruity in the present rules, after complying with this particular requirement, by following the provisions in the old rules, requiring that each assignment be separately set out, or appropriately grouped when related to the same question of law, and followed by the propositions of law arising therefrom, and by a statement of the record pertinent thereto, respectively. It is true, of course, that this process is not obligatory upon counsel in preparing their briefs, but is equally true that by such process they would be complying literally with the existing rules, and at the same time remedy the impracticable arrangement of assignments and propositions provided for in those rules. If this process appears to the members of the bar to be too cumbersome, then they should adopt some other method of showing the relevancy of their propositions of law to their assignments of error. This burden surely rests upon counsel, and not upon the reviewing authority. It is distinctly required in Rule 30 (142 S. W. xiii) that the propositions or points of law upon which an appellant relies "shall be germane to one or more of the assignments of error, or relate to fundamental error." The justness and necessity of this requirement is, of course, obvious. And it is equally obvious that the burden rests exclusively upon the party to show that his propositions are germane or related to his assignments. This requirement is not expressly written into the rules, but it rests in common sense and fairness, and will be enforced in this court. And where the proponent of propositions of law urged here does not by affirmative reference show each proposition to be related or germane to specified assignments of error, it will be our policy to disregard such propositions, and go direct to the assignments and dispose of them without reference to the propositions, and in such case where such assignments do not within themselves constitute propositions, they will be regarded as waived. This rule cannot possibly work hardship, and may be complied with by counsel with the utmost ease when they prepare their briefs. On the other hand, the failure of counsel to comply with it entails a great deal of unnecessary labor upon the reviewing authority. In this case for instance, which furnishes a very moderate illustration for this purpose, appellee propounds 16 ...