Wagner v. Foster
| Decision Date | 14 December 1960 |
| Docket Number | No. A-7989,A-7989 |
| Citation | 341 S.W.2d 887,161 Tex. 333 |
| Parties | Dennis S. WAGNER, Petitioner, v. Charles H. FOSTER et al., Respondents. |
| Court | Texas Supreme Court |
Edwards, Belk, Hunter & Kerr, El Paso, for petitioner.
Mayfield, Broaddus, Goodman & MacAycal, El Paso, for respondent.
The opinion of the Court of Civil Appeals is reported in 337 S.W.2d 485.
The judgment of the Court of Civil Appeals is reversed and the case is remanded to that court for further proceedings. This action is taken pursuant to that part of Rule 483, Texas Rules of Civil Procedure, which reads as follows: 'In cases where the decision of the Court of Civil Appeals is in conflict with a previous opinion of the Supreme Court, the Supreme Court may, in its discretion, without the necessity of granting the writ and hearing the case, reverse the same on the application for writ of error, making, at the same time, such further orders as may be appropriate.' We hold that the decision of the Court of Civil Appeals is in conflict with the opinions of this court in Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, 190; City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77, 85; Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 90; and McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265.
Suit was for damages for breach, and for conspiracy to induce a breach of contract to pay commissions to a real estate broker. Based upon a jury verdict, judgment was rendered by the trial court for the petitioner-plaintiff. In their brief in the Court of Civil Appeals the respondents-defendants, appellants there, presented twenty-nine points of error. The Court of Civil Appeals noted only the first five of the points of error, each of which, if sustained, would have required that the judgment of the trial court be reversed and that judgment be rendered for the appellant. As we interpret the opinion of the Court of Civil Appeals, it considered and sustained only Points One, Two and Four, and upon sustaining those points reversed the judgment of the trial court and rendered judgment for the defendant.
Point One reads as follows:
'The court's fundamental error in refusing to enter judgment for defendants, there being no proof that the property conveyed by Newster Company, Inc. to Dautrich Real Estate Company was the same property described in the listing.'
As a basis for Point One respondents-appellants referred in their brief in the Court of Civil Appeals to paragraph 25 of their objections to the court's charge, paragraph 1 of their motion for instructed verdict, paragraph 8 of their motion for judgment non obstante veredicto and paragraphs 1 and 2 of their motion for new trial.
The case was tried to a jury, and the first question to be decided is whether respondents-appellants were required by the Rules of Civil Procedure to file a motion for new trial and to preserve the error complained of in Point One in that motion. Rule 324 provides:
'In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that it shall not be so prerequisite where * * * a judgment is rendered or denied, non obstante veredicto or notwithstanding the finding of the jury on one or more special issues * * *.'
Rule 325 designates certain matters, not pertinent here, which must be complained of in a motion for new trial notwithstanding the provisions of Rule 324.
While trial court action denying a motion for judgment non obstante veredicto would seem, under the literal wording of Rule 324, to eliminate altogether the necessity for filing a motion for new trial as a prerequisite to appeal, except as to the matters designated in Rule 325, it was not so intended and it has not been and should not be so construed. Miller v. Miller, Tex.Civ.App., 274 S.W.2d 762, 763-764, writ refused; Fenley v. Ogletree, Tex.Civ.App., 277 S.W.2d 135, 140, writ refused, n. r. e.; City of San Antonio v. Gonzales, Tex.Civ.App., 304 S.W.2d 429, writ refused, n. r. e.; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909, 910-911, writ refused, n. r. e. The purpose of the quoted provision of Rule 324 as it relates to a party whose motion non obstante veredicto is denied is to authorize appeal on the grounds stated in the motion without the necessity of incorporating the grounds in a motion for new trial. It was not the purpose of that language to eliminate the necessity for complaining in a motion for new trial of other errors committed on the trial. A party whose motion for judgment non obstante veredicto is denied may forego the filing of a motion for new trial and predicate his points of error on appeal on the matters included in such motion. If he follows that course, he may complain on appeal only of the denial of the motion non obstante veredicto. If he files a motion for new trial as a predicate for complaining of other errors, he need not incorporate in it assignments complaining of the overruling of his motion for judgment non obstante veredicto. With this construction of Rule 324 in mind we must determine whether the error complained of in Point One was preserved for appellate review.
Unless respondents-appellants' 25th objection to the court's charge, even if relevant to Point One, was made the basis of an assignment of error in their motion for new trial, it cannot be a predicate for the point. Only paragraph 2 of the motion for new trial purports to complain of errors in the court's charge. It reads as follows:
Rules 320, 321, 322 and 374 govern the form of assignments of error in motions for new trial which become the basis for points of error on appeal. Rule 320 provides that the motion 'shall specify each ground on which it is founded, and no ground not specified shall be considered.' Rule 321 requires that the assignments in the motion refer to the action of the court complained of 'in such way as that the point of objection can be clearly identified and understood by the court.' Rule 322 directs that 'Grounds of objections couched in general terms * * * shall not be considered by the court.' Rule 374 provides that 'A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.' While Rule 1 states that the rules are to be given a liberal construction to the end that a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law may be obtained with expedition and dispatch and without unnecessary expense, Rules 320, 321, 322 and 374 were deliberately adopted to serve a useful purpose. There must be a substantial compliance with the provisions of those rules if a litigant is to have his points of error based thereon considered by an appellate court.
[161 Tex. 338] Paragraph 2 of the motion for new trial is much too general to predicate Point One. It does not constitute a sufficient compliance with the rules to require, or even to justify, a consideration of the point. It does not refer to the action of the trial court 'in such way as that the point of objection can be clearly identified and understood by the court', nor does it 25th...
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