Western Union Tel. Co. v. Mitchell

• Decision Date: 09 April 1896
• Citation: 35 S.W. 4
• Parties: WESTERN UNION TEL. CO. v. MITCHELL.
• Court: Texas Supreme Court

35 S.W. 4

WESTERN UNION TEL. CO. v. MITCHELL.

Supreme Court of Texas.

April 9, 1896.

Error from court of civil appeals of Third supreme judicial district.

This was an action brought by W. F. Mitchell against the Western Union Telegraph Company in the district court. Judgment was rendered for defendant, from which the plaintiff appealed, and on the hearing of the appeal in the court of civil appeals for the Third supreme judicial district judgment was reversed. The defendant now makes application for writ of error. Application denied.

For former reports, see 24 S. W. 550, and 33 S. W. 1016.

Hutchison & Franklin, John A. Green, Sr., and John A. Green, Jr., for applicant.

BROWN, J.

The court of civil appeals for the Third district reversed the judgment of the district court in this case, and remanded the cause for a new trial. It was objected in the court of civil appeals that the court could not consider the eighth assignment of error as presented by the appellant, because the error complained of was not specified in the motion for new trial filed in the district court. The assignment questioned the correctness of the qualification by the district judge of a charge asked by the plaintiff and given by the court. The court of civil appeals for the Third district, over the appellee's objection, considered that assignment. To give this court jurisdiction of the application for writ of error, it is alleged that this ruling of the court of civil appeals is in conflict with the decisions of the court of civil appeals for the Fourth supreme judicial district in the following cases: Railway v. Worley, 25 S. W. 479; Hammond v. Garcia, Id. 824. Upon examination of the cases we find the rulings of the two courts in conflict upon this question, which gives jurisdiction to this court to consider the application for writ of error where the judgment of the trial court has been reversed, and the cause remanded. We find no error in the action of the court of civil appeals in this case upon any of the questions presented by the application for writ of error, and it must be refused, but we think it proper to state our views upon the question on which the two courts are in conflict. The question is, can the courts of civil appeals consider an assignment of error based upon the action of the trial court in giving, qualifying, or refusing charges when such action was not specified in the motion for new trial in the district court? The court of civil appeals for the Fourth district has held that such assignment cannot be considered. (See cases above cited.) The provisions of our Revised Statutes which bear upon the question are as follows:

"Art. 1370. New trials may be granted and judgments may be set aside or arrested on motion for good cause on such terms and conditions as the court shall direct.

"Art. 1371. Every such motion shall be in writing and signed by the party or his attorney and shall specify the grounds upon which it is founded and no grounds other than those specified shall be heard or considered."

"Art. 1363. The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as excepted to in all cases."

"Art. 1018. The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies before he takes the transcript of the record from the clerk's office; all errors not distinctly specified are waived."

The supreme court has prescribed the following rules, which bear upon the question:

"Rules for the government of the district courts:

"67. Each ground of a motion for a new trial or in arrest of judgment shall briefly refer to that part of the ruling of the court, charge given to the jury, or charge refused, admission or rejection of evidence, or other proceedings which are designed to be complained of in such way as that the point of objection can be clearly identified and understood by the court." 20 S. W. xvi.

"68. Grounds of objection couched in general terms,—as, that the court erred in its charge and in sustaining or overruling exceptions to the pleadings and in excluding or admitting evidence, that the verdict of the jury is contrary to the evidence, or the verdict of the jury is contrary to law, and the like, shall not be considered by the court." 20 S. W. xvi.

"Rules for the courts of civil appeals:

"24. The assignment of errors must distinctly specify the grounds of error relied on, and a ground of error 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 as that the court would act upon it without an assignment of error, as mentioned in rule 23." 20 S. W. viii.

"25. 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 whether it be the rulings of the court upon motion or upon any particular part of the pleadings or upon the admission or rejection of the evidence or upon any other matter relating to the cause or its trial, or the portion of the charge given or refused, etc." 20 S. W. viii.

Article 1363 makes it unnecessary to take a bill of exceptions to the action of the court in giving, refusing, or...