Missouri, K. & T. Ry. Co. of Texas v. Churchill

• Decision Date: 21 June 1919
• Docket Number: (No. 57-2773.)
• Citation: 213 S.W. 253
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. CHURCHILL.
• Court: Texas Supreme Court

213 S.W. 253

MISSOURI, K. & T. RY. CO. OF TEXAS v. CHURCHILL.

(No. 57-2773.)

Commission of Appeals of Texas, Section A.

June 21, 1919.

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

On motion for rehearing. Motion overruled.

For former opinion, see 212 S. W. 155, affirming judgment of the Court of Civil Appeals in 171 S. W. 517.

STRONG, J.

It is insisted in the motion for rehearing that, under the holding in the Dickey Case, 108 Tex. 126, 187 S. W. 184, cited in the original opinion, the Court of Civil Appeals erred in refusing to consider defendant's first assignment of error, which is based on certain objections to the charge of the court. The Court of Civil Appeals refused to consider this assignment, because it did not appear that the objections to the charge were presented to the trial court before the main charge was read to the jury. While the Dickey Case holds that it is not necessary to show by formal bill of exception that the objections to the charge were presented to the court before the charge was read to the jury, it distinctly holds that there must be some authentic record showing that such objections were presented to the court before the reading of the charge to the jury. In the course of the opinion, Chief Justice Phillips, speaking for the court, says:

"The amendatory act is silent with respect to the manner in which it is to be evidenced of record what objections were made to the general charge of the court, and that those made were presented to the court before the reading of the charge to the jury, as is plainly required by amended article 1971. To accomplish the purpose of the amendatory act in its relation to the general charge there should, of course, be some authentic record that the objections to the general charge urged on the appeal were in fact presented to the trial court, and presented before the charge was read to the jury."

There is in the transcript a paper denominated "Defendant's Exceptions to the Court's Charge," which is signed by counsel for defendant, and appears to have been filed on the same day as the charge; but there is nothing in the record to show that this paper was presented to the trial court before the main charge was read to the jury. Such being the state of the record, the Court of Civil Appeals did not err in refusing to consider the assignment of error based on the objections to the charge contained therein.

We think the case was correctly disposed of in the...