Sparks v. Saltillo Independent School Dist.

• Decision Date: 28 July 1929
• Docket Number: (No. 3728.)
• Citation: 19 S.W.2d 814
• Parties: SPARKS v. SALTILLO INDEPENDENT SCHOOL DIST.
• Court: Texas Court of Appeals

19 S.W.2d 814

SPARKS v. SALTILLO INDEPENDENT SCHOOL DIST.

(No. 3728.)

Court of Civil Appeals of Texas. Texarkana.

July 28, 1929.

Rehearing Denied August 1, 1929.

Appeal from District Court, Hopkins County; Grover Sellers, Judge.

Suit by the Saltillo Independent School District against A. W. Sparks. Judgment for plaintiff, and defendant appeals. Affirmed.

This was a suit for taxes (and interest and penalties thereon) alleged to be delinquent for the year 1927 on described lands in Hopkins county. It was commenced in the name of the state of Texas, for the use of the appellee school district, and in the name of the school district for its own use, as plaintiffs, against appellant Sparks as defendant, but the state was dismissed from the suit, and it was prosecuted by the school district alone to the judgment from which this appeal was prosecuted, in favor of said district against Sparks for $74.10 found to be the amount (including interest and penalties) of such taxes, and foreclosing a lien on the land claimed by appellee to exist to secure the payment of the taxes.

J. K. Brim, of Sulphur Springs, for appellant.

Ramey & Davidson, of Sulphur Springs, for appellee.

WILLSON, C.J. (after stating the case as above).

The assignment first presented in appellant's brief is as follows: "The court erred in sustaining plaintiff's special exceptions to the defendant's first amended original answer." Appellee insists, and we agree, the assignment should not be considered, because too general. Rule 26 for the government of Courts of Civil Appeals is (in part) as follows: "Assignments of error which are expressed only in such general terms as that the court erred in its rulings upon the pleadings, when there are more than one, * * * will not be regarded by the court as a compliance with the statute requiring the grounds to be distinctly specified and will be considered as a waiver of errors, the same as if no assignment of errors had been attempted to be filed." The special exceptions referred to in the assignment were eight in number and to as many separate defenses set up in the answer. Yoe v. Montgomery, 68 Tex. 338, 4 S. W. 622; Thornton v. Bank (Tex. Civ. App.) 252 S. W. 278; Smith v. Russell, 23 Tex. Civ. App. 554, 56 S. W. 687; Hansen v. Yturria (Tex. Civ. App.) 48 S. W. 795; Marshall v. Atascosa County (Tex. Civ. App.) 47 S. W. 680; Lynch v. Bernhardt (Tex. Civ. App.) 201 S. W. 1051; Oil Corp. v. Sweet (Tex. Civ. App.) 263 S. W. 641; Chapman v. Pettus (Tex. Civ. App.) 269 S. W. 268; Duckworth v. Improvement Dist. (Tex. Civ. App.) 11 S.W.(2d) 263. If, however, the assignment were considered, it should be overruled if the court had a right to sustain any of the eight special exceptions, Ferguson v. Washburn (Tex. Civ. App.) 4 S.W.(2d) 574; and clearly he did have a right to sustain some of them, for instance, those to paragraphs 5, 7, 8, and 10 of the answer.

The assignment next presented in said brief is that the court erred in admitting, over appellant's objection thereto, specified testimony of the witness Connor. The proposition under the assignment is that "it was error for the court to admit oral testimony of a witness where the record was the best evidence." The testimony was not objected to on the ground indicated by the proposition and insisted upon in said brief. Appellant cannot be heard to urge here in support of his assignment a ground not urged in the court below in support of his objection. Ry. Co....