Overstreet v. Donnell
| Decision Date | 19 October 1934 |
| Docket Number | No. 1326.,1326. |
| Citation | 75 S.W.2d 937 |
| Parties | OVERSTREET et ux. v. DONNELL, Sheriff, et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Clay County; Vincent Stine, Judge.
Action by J. S. Overstreet and wife against Jeff Donnell, Sheriff, and others. From an order dismissing plaintiffs' case, they appeal.
Affirmed.
J. S. Overstreet, of Ryan, Okl., for appellants.
J. W. Chancellor and T. B. Coffield, both of Bowie, for appellees.
The suit was brought by J. S. Overstreet and wife against Jeff Donnell, sheriff of Clay county, and National Surety Company, a corporation. The nature of the recovery sought does not clearly or certainly appear from the record. Perhaps the conclusion is justifiable that plaintiffs sought recovery of judgment for damages, actual and exemplary, for the wrongful seizure and conversion by Sheriff Donnell of certain personal property belonging to plaintiffs. The petition wholly fails to state the nature of the claim against defendant National Surety Company. Only the defendant Donnell answered. As to the surety company, the record shows no service of citation, waiver thereof, or appearance by it. The defendant Donnell answered by general demurrer and by a number of special exceptions. He further answered by general denial and specially pleaded facts which, if true, would show that if plaintiffs had any cause of action growing out of the transaction in question, the First National Bank of Bowie, Tex., was a necessary party thereto. The trial court overruled the general demurrer, but sustained some of the special exceptions. The plaintiffs appeared in the prosecution of their suit without the assistance of counsel, and when the special exceptions were sustained the court, according to a recitation in his order, advised the plaintiffs as to the procedure, in reply to which the plaintiffs stated to the court that they would not amend in any particular, but desired to appeal from the order of the court dismissing the case. The court thereupon dismissed the case, and from that order, or judgment, the plaintiffs have appealed.
As in the trial court, the appellants (plaintiffs below) appear in this court without the aid of counsel. Upon motion of the appellee, we, prior to submission, struck out the appellants' brief for defects alleged, among them being the total omission of any assignments of error. We granted leave to file an amended brief, but the amended brief is also wholly devoid of any assignments of error, or other characteristic elements of a brief. It is well settled that our jurisdiction to review a judgment upon appeal from final judgment duly perfected can only be invoked by assignments of error or fundamental errors reflected by the record. Panhandle & Santa Fé Ry. Co. v. Burt (Tex. Civ. App.) 71 S.W.(2d) 390. It follows, therefore, that as the case is presented to us we can only look to the record to determine if one or more fundamental...
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Mann v. Morrison
... ... dismissed." See, also, Graves v. Dakessian, Mo ... Sup., 132 S.W.2d 972; ... [144 P.2d 546] ... Overstreet et ux. v. Donnell et al., Tex. Civ. App., ... 75 S.W.2d 937; Johnson et al. v. J. R. Watkins Medical ... Co., 66 Colo. 458, 182 P. 879; Howell et ... ...
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Miller v. Kossey
...1962, no writ); Ship Ahoy, Inc. v. Whalen, 347 S.W.2d 662, 663 (Tex.Civ.App.--Houston 1961, no writ); Overstreet v. Donnell, 75 S.W.2d 937, 938 (Tex.Civ.App.--Eastland 1934, writ dism'd). Consequently, the court did not err in dismissing the action. Miller's first point of error is Secondly......
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City of Alice v. Lacey
...other grounds, 151 Tex. 251, 248 S.W.2d 731; Shaw v. Universal Life & Accident Ins. Co., Tex.Civ.App., 123 S.W.2d 738; Overstreet v. Donnell, Tex. Civ.App., 75 S.W.2d 937; 4 A.L.R.2d 352; 71 C.J.S. Pleading Secs. 462g, 482; 8 Tex. Jur., Supp., Pleadings, Sec. Article 7328.1, Vernon's Tex.Ci......
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Ship Ahoy, Inc. v. Whalen, 13710
...Shaw v. Universal Life and Accident Ins. Co., Tex.Civ.App., 123 S.W.2d 738, or could order the case dismissed. Overstreet v. Donnell, Tex.Civ.App., 75 S.W.2d 937. Since the court had not ordered the case dismissed at the time the second amended petition was presented, the court properly per......