Isbell v. Lennox

• Decision Date: 04 June 1927
• Docket Number: (No. 355.)
• Citation: 295 S.W. 920
• Parties: ISBELL et al. v. LENNOX et al.
• Court: Texas Supreme Court

Page 920

295 S.W. 920

ISBELL et al. v. LENNOX et al.

(No. 355.)

Supreme Court of Texas.

June 4, 1927.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by G. W. Isbell and others against H. H. Lennox and others. Judgment for defendants was affirmed by the Court of Civil Appeals (224 S. W. 524), and plaintiffs bring error. Judgments of the district court and the Court of Civil Appeals affirmed.

J. Q. Mahaffey and Keeney & Dalby, all of Texarkana, and T. T. Thompson, of Clarksville, for plaintiffs in error.

A. P. Parks, of Paris, and Lennox & Lennox, of Clarksville, for defendants in error.

PIERSON, J.

The nature of the case is sufficiently disclosed by the following brief statement of the case by the honorable Court of Civil Appeals:

"This was a suit by appellants against appellees for damages they claimed they had suffered as a result, they charged, of the act of appellees in so diverting water from its natural course on their land as to cause same to flow upon and injure appellants' land. In their petition appellants alleged that the diversion was of surface water and of the waters of Boggy creek, a tributary of Lankford creek, by means of a dam and levee appellees constructed on their land to a point thereon near land adjoining it on the south which belonged to appellants. In their answer appellees admitted they constructed a dam across a prong of Boggy creek on their land, but denied that the effect of same and of the ditch they dug and levee they constructed was to divert the waters of said creek and water falling on their land so as to cause same to overflow appellants' land different from the way it had always overflowed same. Appellees alleged that appellants' land was the natural way for water falling on their (appellees') land and the overflow waters of Lankford, Boggy, and Pickett creeks to escape.

"At the trial appellants adduced testimony tending to support the allegations in their petition, and appellees adduced testimony tending to support the allegations in their answer.

"The appeal is from a judgment in appellees' favor in conformity to the verdict of a jury."

The opinion of the Court of Civil Appeals may be found in 224 S. W. 524.

The Court of Civil Appeals refused to consider the assignments of error of the plaintiffs in error, holding, first, that plaintiffs in error had not complied with article 1971, R. S. 1911, being article 2185, R. S. 1925, in their objection to the court's main charge, and that same stands as if not objected to at all, and any errors therein could not be considered on appeal; second, that:

"A party who has not objected to the main charge to the jury has no right to complain of the refusal of the court to give a requested special charge inconsistent with or contradictory of the main charge."

The holding of the Court of Civil Appeals on the first point is in line, we think, with the holdings of all the decisions; the holding on the second point is in line with City of Fort Worth v. Ashley (Tex. Civ. App.) 197 S. W. 307, Fort Worth & D. C. Ry. Co. v. Miller (Tex. Civ. App.) 201 S. W. 1049, Graves v. Haynes (Tex. Civ. App.) 214 S. W. 665, and Hendrick v. Blount-Decker Lumber Co. et al. (Tex. Civ. App.) 200 S. W. 171; but in conflict with Rabinowitz v. Smith Co. (Tex. Civ. App.) 190 S. W. 197, C. & S. Ry. Co. v. Rowe (Tex. Civ. App.) 224 S. W. 936, and Barnett v. Perrine (Tex. Civ. App.) 250 S. W. 1111.

The plaintiffs in error objected to the court's charge in the following language:.

"The plaintiffs excepts and objects to the court giving, in charge to the jury, the following portions of the charge, to wit."

Then followed a paragraph of the court's charge. Another paragraph of the court's charge was objected to in the same way and in the same language.

The Court of Civil Appeals correctly held that the so-called objection was not a compliance with the requirements of article 1971, R. S. 1911 (article 2185, R. S. 1925), and amounted to no objection at all (224 S. W. 524). Said article, in part, reads as follows:

"The charge shall be in writing, signed by the judge, * * * after the evidence has been concluded and shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived."

This statute was designed to correct a very important handicap or evil in the trial of cases. Its purpose in requiring the parties or their attorneys to present to the court their objections to the charge clearly is that the party objecting must apprise the court of the error in his charge with a view to its correction.

The objection must point out to the court the error complained of. If it fails to do that, it does not meet the purpose and requirement of the statute and is no objection at all.

The...