Stillman v. Hirsch

• Decision Date: 09 December 1936
• Docket Number: No. 6975.,6975.
• Citation: 99 S.W.2d 270
• Parties: STILLMAN v. HIRSCH.
• Court: Texas Supreme Court

99 S.W.2d 270

STILLMAN v. HIRSCH.

No. 6975.

Supreme Court of Texas.

December 9, 1936.

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

Action by Maurice Hirsch against Phillip Stillman. To review a judgment of the Court of Civil Appeals [84 S.W.(2d) 501], which affirmed a judgment for plaintiff, defendant brings error.

Judgments of the trial court and Court of Civil Appeals affirmed.

B. F. Louis, Murray G. Smyth, and Robert L. Sonfield, all of Houston, for plaintiff in error.

Hirsch, Susman & Westheimer and I. Mark Westheimer, all of Houston, for defendant in error.

SHARP, Justice.

This case involves important procedural questions with respect to statutes and rules relating to filing motions for new trial, including the action of the trial judge in giving, refusing, or qualifying instructions to the jury, and the filing of assignments of error, as may be considered prerequisite to appellate review by the courts.

The honorable Court of Civil Appeals held: (1) That motions for new trial shall be filed in the trial court, and that such motions shall be in writing and specify each ground on which it is founded, and that no error not specified shall be considered (unless fundamental); and (2) that assignments of error to the giving or refusal of charges or special issues cannot be reviewed in the absence of exceptions thereto. 84 S.W.(2d) 501. Because of the important questions involved, a writ of error was granted.

This cause involves the construction of many articles of the statutes, and particularly articles 1844, 2188, 2209, 2210, 2232, and 2237, Vernon's Annotated Civil Texas Statutes and rules 24 and 25 for the Courts of Civil Appeals, as amended January 24, 1912, and rule 71a, adopted on the same date, and rule 101a, amended June 25, 1913, for the district and county courts. For the sake of convenience we set out the pertinent parts of the above-described articles and rules:

Article 2232 in part reads: "New trials may be granted and judgments arrested or set aside on motion for good cause, on such terms as the court shall direct. Each such motion shall: * * *

"3. Specify each ground on which it is founded, and no ground not specified shall be considered."

Article 2209 reads: "Where a special verdict is rendered, or the conclusions of fact found by the judge are separately stated, the court shall render judgment thereon unless set aside or a new trial is granted."

Article 2210 reads: "It shall be sufficient for the party excepting to the conclusions of law or judgment of the court to cause it to be noted on the record in the judgment entry that he excepts thereto; and he may thereupon take his appeal or writ of error without a statement of facts or further exceptions in the transcript; but the transcript shall in such cases contain the special verdict or conclusions of fact and law aforesaid, and the judgment rendered thereon."

Article 2188 reads: "When a special instruction is requested and the provisions of the law have been complied with and the trial judge refuses the same, he shall indorse thereon `Refused,' and sign the same officially. If the trial judge modify a special charge, he shall indorse thereon `Modified as follows: (stating in what particular he has modified the charge) and given, and exception allowed' and sign the same officially. Such refused or modified charge when so indorsed shall constitute a bill of exceptions and it shall be conclusively presumed that the party asking said charge presented the same at the proper time, excepted to its refusal or modification, and that all the requirements of law have been observed, and the same shall entitle the party requesting such charge to have the action of the trial judge in refusing or modifying the same reviewed without preparing a formal bill of exceptions."

Article 2237 in part reads: "If either party during the progress of a cause is dissatisfied with any ruling, opinion, or other action of the court, he may except thereto at the time the said ruling is made, or announced or such action taken, and at his request time shall be given to embody such exception in a written bill. The preparation and filing of bills of exception shall be governed by the following rules: * * *

"3. The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to."

Article 1844 provides that: "The appellant or plaintiff in error need not file assignments of error with the Clerk of the Court below but he may embody in his brief in the appellate court all assignments of error distinctly specifying the grounds on which he relies. All errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the Court to the error complained of. The appellee or defendant in error need not file his cross-assignments of error with the Clerk of the Court below but may embody them in his brief filed in the appellate court."

Rule 24 reads: "The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23."

Rule 25 reads: "To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of, in a particular manner, so as to identify it, whether it be the rulings of the court upon a motion, or upon any particular part of the pleadings, or upon the admission or the rejection of evidence, or upon any other matter relating to the cause or its trial, or the portion of the charge given or refused, the fact or facts in issue which the evidence was incompetent or insufficient to prove, the insufficiency of the verdict or finding of the jury, if special, and the particular matter in which the judgment is erroneous or illegal, with such reasonable certainty as may be practicable, in a succinct and clear statement, considering the matter referred to, and must refer to that portion of the motion for a new trial in which the error is complained of."

Rule 71a reads: "A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial."

Rule 101a reads: "In all cases in which a motion for a new trial is filed the assignments contained in such motion or amended motion as finally ruled upon by the trial court shall constitute the assignments of error. All errors not distinctly specified in such motion, or in the assignments of error where a motion for a new trial is not filed, shall be waived; but an assignment shall be sufficient which directs the attention of the court to the error complained of, without the necessity of stating therein the reasons for which it is claimed to constitute such error, which reasons shall be submitted in propositions under the assignment."

The question of procedure presented here has brought about much confusion to the bench and the bar, and many decisions exhibit an irreconcilable conflict thereon. See 3 Tex.Jur. p. 246, etc.; volume 4, Texas Law Review, p. 486; and volume 14, Texas Law Review, p. 369. We shall point out below some of the conflicting holdings on this subject.

1. It has been held that no motion for new trial is necessary or required in cases tried before the court without a jury. Bell County v. Alexander et al., 22 Tex. 350, 351, 73 Am.Dec. 268; Greer v. Featherstone, 95 Tex. 654, 69 S.W. 69; Craver v. Greer, 107 Tex. 356, 179 S.W. 862; Hess & Skinner Engineering Co. v. Turney et al., 109 Tex. 208, 203 S.W. 593.

2. It also has been held that, upon all questions where the trial court has been called upon to rule once, it is not necessary to file a motion for new trial embracing such matter. Phillips Petroleum Co. v. Booles (Tex.Com.App.) 276 S.W. 667, 669; Egan v. Lockney Farmers' Co-op. Society (Tex.Com.App.) 284 S.W. 937, 939; Houston Belt & Terminal Ry. Co. v. Daidone (Tex.Civ.App.) 62 S.W.(2d) 524, 530; Harlan-Elzy-Randall Co. v. American Fruit Growers, Inc. (Tex.Civ.App.) 7 S.W.(2d) 132, 133; Id. (Tex.Com.App.) 16 S.W.(2d) 261; Dallas Tailors' Supply Co. v. Goen (Tex.Civ.App.) 25 S.W.(2d) 224, 228; Price v. American Surety Co. of New York (Tex.Civ.App.) 59 S.W.(2d) 426, 427; City of Abilene v. American Surety Co. (Tex.Civ.App.) 73 S.W.(2d) 616, 618; Colorado Life Co. v. Newell (Tex.Civ. App.) 78 S.W.(2d) 1049, 1051.

3. In the construction of articles 2209 and 2210 it was held that, where a case was tried on special issues, a motion for new trial was not necessary, unless the ground urged for reversal is misconduct of the jury, newly discovered evidence, or some other matter which has not been submitted to the trial judge for a ruling thereon and then such grounds must first be presented by motion for new trial. Rudasill v. Rudasill (Tex.Civ.App.) 219 S.W. 843; Milam v. Stubblefield (Tex.Civ.App.) 271 S.W. 410; Navar v. First Nat. Bank (Tex.Civ.App.) 254 S.W. 126; Bland v. Cruce (Tex.Civ.App.) 238 S.W. 720; Stubblefield v. Jones (Tex.Civ.App.) 230 S.W. 720 (writ refused); Varley v. Nichols-Shepard Sales Co. (Tex.Civ.App.) 191 S. W. 611.

4. Furthermore, it has been held that, where the error complained of is the giving, refusal, or qualification of instructions to the jury, it is not necessary to include such error in a motion for new trial. Missouri K. & T. Ry. Co. of Texas v. Beasley, 106 Tex. 160, 155 S.W. 183, 160 S.W. 471. To the contrary, it was held in an opinion by ...