Hemphill v. National Iron & Steel Co.

• Decision Date: 21 December 1911
• Citation: 142 S.W. 845
• Parties: HEMPHILL v. NATIONAL IRON & STEEL CO.
• Court: Texas Court of Appeals

Page 845

142 S.W. 845

HEMPHILL v. NATIONAL IRON & STEEL CO.

Court of Civil Appeals of Texas. El Paso.

December 21, 1911.

On Rehearing, January 24, 1912.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by the National Iron & Steel Company against M. R. Hemphill. From a judgment for plaintiff, defendant appeals. Affirmed.

Baldwin & Taylor, for appellant. Sam Schwartz, for appellee.

HIGGINS, J.

The only assignment of error in the record in this case presented for our consideration is as follows: "The trial court erred in overruling defendant's amended motion for new trial, and not granting him a new trial for the reasons therein set forth." Upon examination of the amended motion, we find that three grounds were urged, viz.: First, that the court erred in overruling the appellant's plea of privilege to be sued in the district court of Haskell county; second, the court erred in overruling the appellant's plea to the jurisdiction of the district court of Harris county over the subject-matter of the suit; third, the court erred in overruling the defendant's application for a continuance. This assignment is too general to require consideration of the first and third grounds stated in the motion for new trial. The second ground urged, however, if well taken, would be fundamental error, and we have therefore examined the record for the purpose of ascertaining whether or not the district court of Harris county had jurisdiction over the subject-matter of this suit; and, it appearing that it did have jurisdiction thereof, the case is therefore affirmed.

On Rehearing.

In our original opinion we held that the appellant's assignment of error was too general to require consideration of any of the questions raised thereby, except one, which was fundamental in its nature.

Appellant in his motion for a rehearing earnestly urges that we erred in declining to consider the assignment, and, lest we should do an injustice by declining to do so, we have carefully considered and reinvestigated the correctness of our original opinion, and are confirmed in the correctness thereof.

Rule 30 (67 S. W. xvi) for the Courts of Civil Appeals provides that each point under an assignment shall be stated as a proposition, unless the assignment itself discloses the point, in which event the assignment itself shall be sufficient, but, where there are several points raised by an assignment, the rule contemplates that each point shall be subjoined to the assignment in the form of a proposition. Railway Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752. The rules require the propositions to be stated separately, and an assignment is multifarious as a proposition if it embodies several propositions. Driver v. Wilson, 68 S. W. 290.

And, where an assignment raises more than one distinct proposition, it is not permissible to treat the assignment itself as a proposition raising all of the questions suggested therein, but these questions must be submitted as distinct propositions. Railway Co. v. White, 120 S. W. 958; Railway Co. v. Quebedeaux, 119 S. W. 1158; Railway Co. v. De Berry, 34 Tex. Civ. App. 180, 78 S. W. 736; Mundine v. Pauls, 28 Tex. Civ. App. 46, 66 S. W. 254; Phillips v. Texas Loan Agency, 26 Tex. Civ. App. 505, 63 S. W. 1080; Kidwell v. Carson, 22 S. W. 534. It is also held that an assignment of error which complains of two rulings of the trial court which relate to separate and distinct questions, although followed by appropriate propositions and statements, explaining each of the...