Martin v. German American Nat. Bank

• Decision Date: 17 April 1907
• Citation: 102 S.W. 131
• Parties: MARTIN et al. v. GERMAN AMERICAN NAT. BANK.
• Court: Texas Court of Appeals

102 S.W. 131

MARTIN et al. v. GERMAN AMERICAN NAT. BANK.

Court of Civil Appeals of Texas.

April 17, 1907.

Rehearing Denied May 15, 1907.

Appeal from District Court, Mason County; Clarence Martin, Judge.

Action by the German American National Bank against J. B. Martin and others. From a judgment for plaintiff, defendants appeal. Reversed and rendered.

Slator & Oatman, for appellants. Rudolph Runge, for appellee.

FLY, J.

This is a suit on a promissory note for $150, instituted by appellee against J. B. Martin, W. J. Mogford, and T. F. Rainey, appellants, in the justice's court where judgment was rendered for appellants. The cause was appealed by appellee to the district court, and the cause submitted to the court, without a jury, and judgment was rendered in favor of appellee for $139.35.

The note forming the basis of the suit was executed by J. B. Martin, W. J. Mogford, and T. F. Rainey for $150, to D. H. Meek, and was by him indorsed to appellee as collateral security for a debt due by him to appellee. On the date that the note was executed Meek signed an agreement that the note was not to be paid to him unless he was successful in a certain suit that he had been employed to prosecute for the makers of the note. Appellee had no notice of such an agreement when the note was transferred to it. After a statement of the facts appellants make the following statement in their brief: "In accordance with a decision of one of the Courts of Civil Appeals recently made, we will undertake in this brief to group some of the assignments of error, and will omit to restate in the brief some of said assignments, but do not wish to be understood as waiving any one of them and will invite the court to review each one of the assignments in connection with this brief as it would be too lengthy to state each assignment with separate proposition and authorities." The decision referred to is not given, and while appellants are permitted to group assignments of error pertaining to the same subject-matter, we have never seen a decision by any court of Texas that would permit the consideration of assignments of error not copied into the brief; for the rule is well established by decisions of the Supreme Court that all assignments not copied into the briefs are considered waived, although it may be stated, as in this case, that they are not waived. Railway v. Herbeck, 60 Tex. 602; Worthington v. Wade, 82 Tex. 26, 17 S. W. 520; Railway v. McClain, 80 Tex. 85, 15 S. W. 789; Cooper v. Hiner, 91 Tex. 658, 45 S. W. 554. These decisions are merely declaratory of the plain provision of Rule 29 for Courts of Civil Appeals (67 S. W. xv), which declares that each assignment not "copied in the brief with its appropriate propositions and statements shall be regarded as abandoned."

Under the superscription, "First, second, and third assignments of error treated as one under this, the third assignment of error, here stated as a proposition," is copied a part of what is the third assignment in the transcript followed by other matter similar to, but not identical with, that contained in the remaining portion of the assignment. By the word "copied" used in the rule is not meant that reconstructed or amended assignments should be placed in the briefs, but that the assignments of error contained in the record should be printed in the briefs. The first part of the assignment, in this instance, however, raises the question of the sufficiency of the evidence to...