McBurnett v. Gordon

• Decision Date: 12 February 1976
• Docket Number: 7798,Nos. 7797,s. 7797
• Citation: 534 S.W.2d 370
• Parties: Bertha McBURNETT et vir., Appellants, v. Floyd GORDON et al., Appellees. Bertha McBURNETT et vir., Appellants, v. James R. GORDON et al., Appellees.
• Court: Texas Court of Appeals

Page 370

534 S.W.2d 370

Bertha McBURNETT et vir., Appellants, v. Floyd GORDON et al., Appellees.

Bertha McBURNETT et vir., Appellants, v. James R. GORDON et al., Appellees.

Nos. 7797, 7798.

Court of Civil Appeals of Texas Beaumont.

Feb. 12, 1976.

Rehearing Denied March 25, 1976.

J. Leonard Gotsdiner, Houston, for appellants.

Fletcher Richardson, Lee Roger Ratliff, Silsbee, for appellees.

KEITH, Justice.

Plaintiffs below (appellants here) have appealed from two adverse judgments entered in the District Court of Hardin County; and, since the parties are the same in each case, we will dispose of the appeals with a single opinion.

The Deed Case

Our No. 7797 (District Court No. 15,048) is a suit brought by appellants against appellees to set aside three deeds executed by the mother of the parties, Rosie Gordon, prior to her death. This suit was instituted on April 9, 1969, and the defendants duly answered; and, by amended pleadings, filed numerous special exceptions. By an order dated September 11, 1975, the trial court sustained all of such exceptions and dismissed the suit. The order is silent as to whether plaintiffs sought leave or declined to amend . The appeal was duly perfected from the order of dismissal.

In the Deed Case the sole question is whether the trial court erred in sustaining the exceptions of the defendants and in dismissing the cause. The appellants have No points of error challenging such action. Instead, all of the points of error relate to our No. 7797 hereinafter discussed complaining of the dismissal of the cause for want of prosecution. We discussed only recently the nature of an appeal from an order of dismissal after the trial court has sustained exceptions. See McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.).

Had appellants addressed points of error to this action of the court in sustaining the special exceptions in the Deed Case, we could pass upon the propriety of the court's dismissal. But, appellants have failed to discharge the burden resting upon every litigant who perfects an appeal from an adverse judgment in a trial court--'to show that the judgment is erroneous in order to obtain a reversal. The Englander Co., Inc. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968).

An appellant can show reversible error only by complying with the rules governing appellate practice, including Tex.R.Civ.P. 418. When a point of error is not preserved in accordance with Rule 418, the question is not properly before the appellate court for review. Isenhower v. Bell, 365 S.W.2d 354, 358 (Tex.1963). The failure to present a point of error amounts to a waiver thereof. Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.1966); State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353, 354 (Tex.1971).

Upon oral argument, and for the first time, appellants in the Deed Case contended that the trial court committed fundamental error in sustaining one of the special exceptions, the thrust of the argument being that the pleadings disclosed the absence of a necessary party. No such contention was made by appellants in the court below or in the brief filed in this court.

We granted leave to file a supplemental brief confined to the alleged fundamental error and a lengthy brief has been filed by appellants' counsel. We have examined all of the authorities therein cited and find none to be dispositive of the contention now advanced. ¹

The doctrine of fundamental error was restricted severely by our Supreme Court in McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957), which required the appellate court to note unassigned errors '(w)hen the record affirmatively and conclusively shows that the court rendering the judgment was without jurisdiction of the subject matter' of the suit.

Chief Justice Calvert, in Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891, 893 (Tex.1966), construing Tex.R.Civ.P. 39 as it was Then written, addressed the court's attention to classification of the parties. However, extensive changes were made in Rule 39 in the amendment effective January 1, 1971, rendering inoperative much of the holding in Tyra, supra.

The modern and prevailing rule is that stated in Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 203--204 (Tex.1974), ² where Tyra and amended Rule 39, both supra, are discussed in a scholarly opinion by Justice Johnson. Among other statements contained in this latest expression by our Supreme Court is this:

'Under the provisions of our present Rule 39 it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined.' (513 S.W.2d at 204)

See also, Sherrill v. Estate of Plumley, 514 S.W.2d 286, 298 (Tex.Civ.App.--Houston (1st Dist.) 1974, writ ref'd n.r.e.).

Under the record which we review in the Deed Case, we do not find fundamental error. McCauley, supra.

Appellants' having no points of error challenging the action of the trial court in sustaining the exceptions and dismissing the cause, and having found no fundamental error in our search of the record, the judgment of the trial court in the Deed Case (Our No. 7797, District Court No. 15,048) is AFFIRMED.

The Will Case

Our No. 7798 (District Court No. 15,609) originated as an appeal from an order of the constitutional county court of Hardin County denying admission to probate of the alleged will of Rosie Gordon, the mother of all the parties. The transcript of the proceedings in the probate court was filed in the District Court on June 18, 1970. Thereafter, the defendants filed separate motions to dismiss this cause because of want of diligent prosecution, such motions having been filed on July 30 and July 31, 1975, respectively.

The Will Case recites the appearance of the parties by and through their respective attorneys and continues:

'The Court, After hearing all of the evidence submitted by all of the respective parties hereto, argument of counsel and after full consideration of these matters, finds the following: The appeal of BERTHA McBURNETT has been pending on the docket of this court for a period in excess of five (5) years; said cause has not been set for hearing by the said BERTHA McBURNETT since being placed on the docket of this court; on February 19, 1973, by and through her attorney of record, Plaintiff requested that said cause be placed on the trial docket setting of this court, and made no request for a trial setting at the docket call held on July 20, 1973; and, the said BERTHA McBURNETT, by her acts and conduct, has abandoned her appeal and cause of action. It appears to the Court that the ...