Lang v. Harwood

• Decision Date: 28 November 1940
• Docket Number: No. 2256.,2256.
• Citation: 145 S.W.2d 945
• Parties: LANG et al. v. HARWOOD.
• Court: Texas Court of Appeals

Page 945

145 S.W.2d 945

LANG et al. v. HARWOOD.

No. 2256.

Court of Civil Appeals of Texas. Waco.

November 28, 1940.

Rehearing Denied December 19, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, McLennan County, Nineteenth District; R. B. Stanford, Judge.

Action by Ophelia Harwood against Dee Lang and Charles A. Lenz to recover damages for conversion of personal property. Judgment for plaintiff, and defendants appeal.

Judgment against defendant Lenz affirmed, and judgment against defendant Lang reversed and cause remanded.

W. C. Taylor, John F. Sheehy, and Carlton J. Smith, all of Waco, for appellants.

Naman, Howell & Boswell, of Waco, for appellee.

ALEXANDER, Justice.

This suit was brought by Ophelia Harwood against Dee Lang and Chas. A. Lenz for damages for the alleged conversion of certain monkeys, a lion, and other show animals, and a tractor and trailer and other equipment. A trial before a jury resulted in a joint and several judgment against both of the defendants for $2,345 actual damages, and against Chas. A. Lenz for the sum of $1,625 exemplary damages. Both defendants have appealed.

The material facts are substantially as follows: While the property in question was at Danville in Vermillion County, Illinois, Mrs. Harwood, who lived in Chicago, Cook County, Illinois, mortgaged it to Lenz to secure the payment of a note in the sum of $400, due November 1, 1938. The mortgage contained a power of sale and authorized the mortgagee to take possession of the property in the event he felt himself insecure. Under the law in Illinois, a sale under the powers contained in a chattel mortgage can be had only in the county where the property was situated at the time the mortgage was given or in the county where the mortgagor resided. About the time the debt in question matured, Lenz went to Gideon in New Madrid County, Missouri, where the property was being used in a show, and, being unable to find Mrs. Harwood, took possession of the property without her consent, moved it to Cairo, Illinois, and sold it under the powers contained in the chattel mortgage. One McFerrin bought the property in at the sale and immediately sold it to Lenz. Sometime thereafter, Lenz sold the property to Lang. The property was at Waco in Lang's possession at the time this suit was filed.

At the outset, the appellee presents many objections to the form and substance of appellants' brief. Ordinarily, we do not write on questions of this kind, but in view of the frequency with which these questions arise, we deem it proper to give consideration thereto in this case.

It has long been the policy of this court to apply the most liberal construction in favor of the sufficiency of the brief and to give effect thereto, if it is possible for us to ascertain either from the assignment, proposition or statement and argument the point intended to be presented thereby. Clifton v. W. R. Thompson & Sons Lbr. Co., Tex.Civ.App., 100 S.W.2d 392, par. 1; State Teachers' Mutual Life Ins. Co. v. Mims, Tex.Civ.App., 74 S.W.2d 549, par. 1. We have pursued this liberal policy because, in our opinion, a holding that a brief is insufficient tends to frighten the lawyers, and, as a consequence, they are caused to greatly multiply the number of their assignments of error and propositions and unnecessarily lengthen their briefs and thus increase the work to be done by this court. The Supreme Court has likewise pursued a liberal policy in the construction of the rules with reference to briefs. Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916, par. 1; Cammack v. Rogers, 96 Tex. 457, 73 S. W. 795.

Appellants' brief is entirely too long. It contains 106 pages, whereas it should not have exceeded 25 pages. The work of the Court of Civil Appeals is very heavy and the attorneys should undertake to simplify the work as much as possible. Long briefs greatly increase the work of the court and unnecessarily decrease its efficiency. Such long briefs have a tendency to confuse rather than clarify the points to be passed on by the courts.

The statement of the nature and result of the suit, as contained in appellants' brief, covers 6 pages, whereas it should not have been any longer than the opening statement in this opinion. It sets out in detail the pleadings of both sides. This is wholly unnecessary and quite improper when the sufficiency of the pleadings is not challenged. A statement of the nature and result of the suit as embodied in the brief should not contain a full history of the case but should contain only a statement of the general nature of the suit—that is, whether it is a suit in trespass to try title, for personal injuries, or for debt with foreclosure of lien or the like; whether it was tried before the court or a jury; and who was successful in the lower court. If necessary, this may be followed by a fuller statement of the general nature of the case, but this should be done only when it is necessary in order to enable the court to understand the general nature of the questions involved; and such fuller statement should never contain the details to be considered in connection with the propositions or points to be considered later. Texas Land Co. v. Williams, 48 Tex. 602, 613. All unnecessary references to names, dates, amounts, and other details tend to magnify their importance and thus detract from the really important facts. Furthermore, it is of no value to give the details of a case before the points to be decided are first called to the attention of the court. The details should be reserved and stated after and in connection with the particular point for reversal to which they are applicable.

A Court of Civil Appeals is vested with discretion in considering assignments not briefed or presented in strict conformity to the rules, and it is not their policy to disregard assignments merely because of technical violations of the rules. Although an assignment does not merit consideration, the court may notice it if, under the peculiar circumstances, the rule should not be strictly enforced. Clifton v. W. R. Thompson & Sons Lbr. Co., Tex.Civ.App., 100 S. W.2d 392, par. 3, and cases there cited. The brief before us contains 59 assignments of error, whereas 10 assignments would have been ample to have raised all of the material points in the case. All that is required of an assignment of error is that it point out the particular ruling of the court complained of. For example, the following assignments have been held sufficient: "The court erred in overruling defendant's application for a continuance." Missouri, K. & T. Ry. Co. v. Howell, 87 Tex. 429, 30 S.W. 102. "The court erred in overruling the defendant's general demurrer to plaintiffs' original petition." Clarendon Land Investment Co. v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100, 1103, 22 L.R.A. 105. "The court erred in failing and refusing to submit to the jury special issue No. 4, requested by defendants * * *." Green v. Hall, Tex.Com.App., 228 S.W. 183, 184. "The court erred in overruling the defendant's plea to the jurisdiction." Davis v. Burnett, Tex.Sup., 7 S. W. 678. For other illustrations of the sufficiency of assignments of error, see Green v. Hall, Tex.Com.App., 228 S.W. 183; Long v. Red River, T. & S. Ry. Co., Tex. Civ.App., 85 S.W. 1048; Wigglesworth v. Uvalde Live Stock Co., Tex.Civ.App., 126 S.W. 1180. The above illustrations will suffice to demonstrate the simplicity required in the preparation of an assignment of error. It is sufficient for the assignment to merely state the ruling that was made and that it was error. It is not only unnecessary, but improper, to include in the assignment the reason why the ruling is thought to be erroneous. Clarendon, etc., v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100, 22 L.R.A. 105; Dist. Ct. Rule 101a.

The brief contains 35 propositions. Many of them are greatly involved and others are mere abstract propositions. The following will serve as examples of the abstract propositions contained in the brief: "Pleadings cannot be amended or supplemented after judgment is entered." "Where one of two innocent parties must suffer, the one who made the loss possible must bear the loss." Such abstract propositions are mere general statements of abstract rules of law applicable alike to all cases. They do not advise the court as to the questions to be decided nor the reasons for the reversal of the particular case under consideration. They are therefore improper. 3 Tex.Jur. 880; Wright v. Maddox, Tex.Civ.App., 286 S.W. 607; Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844, pars. 1-3; Gulf, C. & S. F. Ry. Co. v. Tarver, Steele & Co., Tex.Civ.App., 295 S.W. 320. It should be noted that the court rule does not call for "propositions of law." It calls for "propositions or points upon which the appeal is predicated." Court of Civil Appeals Rule 30. The new rules adopted by the Supreme Court, but not yet effective, do not mention propositions at all but call for "a statement of the points upon which the appeal is predicated." Texas Rules of Civil Procedure 418. All that is required is that the proposition set out the point to be decided or reason for reversing the case. In Shanks v. Carroll, 50 Tex. 17, it was said that in each proposition should be propounded or affirmed some matter or thing done or refused to be done in the court below, embraced in the appropriate assignment of error, for which the judgment should be reversed or sustained. See also Wright v. Maddox, Tex.Civ.App., 286 S.W. 607. The following are samples of suitable propositions for the presentation of the points to be decided: "This case should be reversed because counsel in his closing argument told the jury that the defendant was protected by insurance." "Plaintiff's petition was subject to the defendant's general demurrer because it failed to allege that plaintiff was the owner or holder of the note sued on." "This case should be reversed on account of the refusal of the court...