Childress v. Smith

Texas Supreme Court

Childress v. Smith

38 S.W. 513, 90 Tex. 610, 1897 Tex. LEXIS 356

CourtTexas Supreme Court

DecidedApril 26, 1897

StatusPublished

Cited by31 cases

This text of 38 S.W. 513 (Childress v. Smith) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Childress v. Smith, 38 S.W. 513, 90 Tex. 610, 1897 Tex. LEXIS 356 (Tex. 1897).

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Opinions

In this case both the appellant and the appellees in the Court of Civil Appeals have applied for a writ of error. In appellant's application there are ten propositions submitted, which are presumably intended as assignments of error. The fourth, fifth and ninth, it seems to us are properly such; but the others are mere statements of propositions of law, and contain no direct averment that the Court of Civil Appeals erred in any ruling. As an example we copy the first:

"Where the petition shows that plaintiff is in a suit to foreclose a mechanic's lien, has only placed $1200.00 worth of work and material in the improvement, and seeks to recover, in addition thereto, for the value of the material which was ordered for the improvement, and which the contractor thereafter sold at a loss, and it is further alleged that the contractor could have made a profit, a demurrer to the petition to plaintiff's seeking to foreclose a lien for anticipated profits and unliquidated damages, and that he is only entitled to recover for work actually done and performed, should be sustained, the law being that a lien cannot be foreclosed for anticipated profits or unliquidated damages."

It may be conjectured, that a demurrer to the petition upon the ground indicated in the proposition had been overruled by the trial court, that the Court of Civil Appeals had affirmed that ruling, and that it was the intention of the appellant to complain of the decision of the latter court *Page 613 upon the point. The assignment should distinctly specify the ruling of which complaint is made. The purported statement of the ground of complaint is, as to its form, a good proposition under a proper assignment, but it is not itself a good assignment of error. The other purported assignments, save the three enumerated above, are subject to the same objection.

The appellant in the Court of Civil Appeals will be allowed ten days to amend his application. Action upon appellees' application will be suspended until the lapse of that time, if the amendment be not previously filed.

Delivered January 13, 1897.

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In this case both the appellant and the appellees in the Court of Civil Appeals have applied for a writ of error. In appellant's application there are ten propositions submitted, which are presumably intended as assignments of error. The fourth, fifth and ninth, it seems to us are properly such; but the others are mere statements of propositions of law, and contain no direct averment that the Court of Civil Appeals erred in any ruling. As an example we copy the first:

"Where the petition shows that plaintiff is in a suit to foreclose a mechanic's lien, has only placed $1200.00 worth of work and material in the improvement, and seeks to recover, in addition thereto, for the value of the material which was ordered for the improvement, and which the contractor thereafter sold at a loss, and it is further alleged that the contractor could have made a profit, a demurrer to the petition to plaintiff's seeking to foreclose a lien for anticipated profits and unliquidated damages, and that he is only entitled to recover for work actually done and performed, should be sustained, the law being that a lien cannot be foreclosed for anticipated profits or unliquidated damages."

It may be conjectured, that a demurrer to the petition upon the ground indicated in the proposition had been overruled by the trial court, that the Court of Civil Appeals had affirmed that ruling, and that it was the intention of the appellant to complain of the decision of the latter court *Page 613 upon the point. The assignment should distinctly specify the ruling of which complaint is made. The purported statement of the ground of complaint is, as to its form, a good proposition under a proper assignment, but it is not itself a good assignment of error. The other purported assignments, save the three enumerated above, are subject to the same objection.

The appellant in the Court of Civil Appeals will be allowed ten days to amend his application. Action upon appellees' application will be suspended until the lapse of that time, if the amendment be not previously filed.

Delivered January 13, 1897.

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Bluebook (online)

38 S.W. 513, 90 Tex. 610, 1897 Tex. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childress-v-smith-tex-1897.

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