Dickey v. Cocke

83 S.W.2d 439, 1935 Tex. App. LEXIS 592

Opinion

BICKETT, Chief Justice.

This is an appeal by C. W. Dickey from • a judgment rendered against him by the district court in favor of Emmett B. Cocke for $814.93, with interest thereon at the rate of 10 per cent, per annum from the date of judgment, April 9, 1934, and for the foreclosure of a lien upon personal property.

The case was tried before a jury. There was no objection made to the special issue submitted to the jury; nor was the submission of any special issue requested. The motion for new trial contained two grounds, in most general terms, to the effect that the verdict was unsupported by, and contrary to, the evidence.

The matters complained of upon this appeal, not constituting fundamental error, if error at all, and not having been -presented to the trial court in the motion for new trial or otherwise, were waived and cannot be considered by this court. Thompson v. Caldwell (Tex. Com. App.) 36 S.W.(2d) 999, 1000; Phillips Petroleum Co. v. Booles (Tex. Com. App.) 276 S. W. 667; Universal Life & Accident Ins. Co. v. Armstrong (Tex. Civ. App.) 63 S.W.(2d) 225. In the first case cited, the court, speaking through Judge Critz, said: “It is the rule that,' unless the error is fundamental, it must be assigned in a motion for a new trial in the district court. This means that the ruling, act, or conduct complained of must be pointed out or stated in the motion for a new trial in such a manner as to apprize the trial court of the error complained of.”

' The judgment of the district court is affirmed.