Hess & Skinner Engineering Co. v. Turney
| Decision Date | 22 May 1918 |
| Docket Number | (No. 3047.) |
| Citation | 203 S.W. 593 |
| Parties | HESS & SKINNER ENGINEERING CO. v. TURNEY et al. |
| Court | Texas Supreme Court |
Suit between the Hess & Skinner Engineering Company and M. M. Turney and others. From the judgment rendered, the former appealed to the Court of Civil Appeals, which certified a question to the Supreme Court. Question answered.
A. B. Wilson, of Houston, for Lion Bonding & Surety Co. Page & Jones, of Bastrop, Duncan & Burleson, of La Grange, Maynard & Maynard, of Bastrop, S. L. Staples, of Smithville, and N. A. Rector, of Austin, for appellees.
Summarized briefly, the question here certified by the Court of Civil Appeals is this:
Where there is a trial before the court without a jury resulting adversely to an appellant who filed a formal motion for a new trial insufficient as an assignment of error because of its generality, is he entitled upon his appeal to have considered formal assignments of error thereafter filed and duly incorporated in the record, and in form sufficient to challenge the trial court's conclusions of law and fact, an exception having been duly reserved to the judgment overruling the motion for a new trial, but none having been taken to the conclusions of law and fact?
The judgment of the court having been excepted to, it was not necessary that exception be also taken to the conclusions of law and fact to secure their review on appeal under due assignments of error. Voight v. Mackle, 71 Tex. 78, 8 S. W. 623; Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 603; Bond v. Garrison, 59 Tex. Civ. App. 620, 127 S. W. 839.
We hold it is the appellant's right to have his assignments of error considered. The question turns upon the proper construction of Article 1612 of the Revised Statutes as amended by the act of the Thirty-Third Legislature. Chapter 136, Acts of 1913 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612). The amended 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 of record from the clerk's office; provided, 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, 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."
The emergency clause of the act throws distinct light upon its purpose, and we therefore also set it out, as follows:
"The near approach of the end of the session and the fact that the practice of repeating the assignments contained in the motion for new trial in assignments of error specifying the same grounds increases the expenses of litigation and adds to the labor of the appellate courts and that there is no law permitting the appellant to rely upon the errors assigned in his motion for new trial without filing an assignment of error, creates an emergency requiring that the constitutional rule requiring bills to be read upon three several days," etc.
Prior to the passage of the act the assignments of error — a prerequisite of the appeal — were in general, where a motion for a new trial was filed, but a repetition of the motion. The requirement that formal assignments of error be filed in addition to the motion for a new trial thus entailed in most instances double labor for the same purpose at the hands of the appellant's counsel, besides unnecessary expense in the preparation of the record. The act was passed to relieve against that condition. Its object was to allow an appellant so desiring to make use of the specifications in his motion for a new trial as his assignments of error. Its intention was to lessen both the labor and expense of the appeal. Its design was for the appellant's benefit and in his interest. This is revealed by the clause in the body of the act providing that the assignments in the motion "need not be repeated by the filing of assignments of error," and that in the emergency clause declaring as the reasons for the act being put into immediate effect, the increase...
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Long v. City Nat. Bank of Commerce
...for the appellant or plaintiff in error to except specially to the trial judge's findings and conclusions. Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 203 S. W. 593; Temple Hill Development Co. v. Lindholm (Tex. Com. App.) 231 S. W. 321. Now suppose appellee had inquired of Long......
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Hardwicke v. Trinity Universal Ins. Co., 1482.
...supporting the proposition that such exception is necessary are the following which imply such necessity: Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 203 S.W. 593; Voight v. Mackle, 71 Tex. 78, 8 S. W. 623; Temple Hill Development Co. v. Lindholm (Tex.Com.App.) 231 S.W. 321; Ree......
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Stillman v. Hirsch, 6975.
...Am.Dec. 268; Greer v. Featherstone, 95 Tex. 654, 69 S.W. 69; Craver v. Greer, 107 Tex. 356, 179 S.W. 862; Hess & Skinner Engineering Co. v. Turney et al., 109 Tex. 208, 203 S.W. 593. 2. It also has been held that, upon all questions where the trial court has been called upon to rule once, i......
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Thomas v. Groebl
...a statute may be and often is "held as merely directory and as having been used in the sense of `may'." Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 210, 203 S.W. 593, 595; Schlemmer v. Board of Trustees, Tex.Civ.App., 59 S.W.2d 264, application for writ of error refused; Norman ......