Donaldson v. McElroy

Court of Appeals of Texas

Donaldson v. McElroy

184 S.W. 1100, 1916 Tex. App. LEXIS 407

CourtCourt of Appeals of Texas

DecidedMarch 16, 1916

DocketNo. 1593.

StatusPublished

Cited by5 cases

This text of 184 S.W. 1100 (Donaldson v. McElroy) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Donaldson v. McElroy, 184 S.W. 1100, 1916 Tex. App. LEXIS 407 (Tex. Ct. App. 1916).

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Opinion

HODGES, J.

The appellee brought this suit on a promissory note for the sum of $319.50, together with interest and attorney’s fees, and sought a foreclosure of a vendor’s lien on block 66 in the town of Odessa, Tex. The appellant, after a general denial, admit *1101 ted tlie execution of tlie note, but pleaded a failure of consideration and damages for misrepresentation and fraud as an. offset. At tbe conclusion of tbe evidence tbe court gave a peremptory instruction, directing a verdict in favor of tbe plaintiff for tbe amount sued for, and entered judgment, foreclosing tbe vendor’s lien.

In this appeal the only assignments of error presented are those which complain of the action of the court in giving the peremptory instruction. There was no objection made to this charge of the court, nor any exceptions reserved. It has heretofore been held by this court that assignments of this character will not be considered where the record fails to show that objections were made and exceptions reserved in the trial court, as required by the statute. Denison Cotton Mill Co. v. McAmis, 176 S. W. 621. See, also, Walker v. Haley, 181 S. W. 659, for a collection of similar rulings by other Courts of Civil Appeals. We adhere to tbe ruling referred to, and decline to consider tbe assignments of error.

There appearing no fundamental error that would justify a reversal of tbe judgment, it is affirmed.

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HODGES, J.

The appellee brought this suit on a promissory note for the sum of $319.50, together with interest and attorney’s fees, and sought a foreclosure of a vendor’s lien on block 66 in the town of Odessa, Tex. The appellant, after a general denial, admit *1101 ted tlie execution of tlie note, but pleaded a failure of consideration and damages for misrepresentation and fraud as an. offset. At tbe conclusion of tbe evidence tbe court gave a peremptory instruction, directing a verdict in favor of tbe plaintiff for tbe amount sued for, and entered judgment, foreclosing tbe vendor’s lien.

In this appeal the only assignments of error presented are those which complain of the action of the court in giving the peremptory instruction. There was no objection made to this charge of the court, nor any exceptions reserved. It has heretofore been held by this court that assignments of this character will not be considered where the record fails to show that objections were made and exceptions reserved in the trial court, as required by the statute. Denison Cotton Mill Co. v. McAmis, 176 S. W. 621. See, also, Walker v. Haley, 181 S. W. 659, for a collection of similar rulings by other Courts of Civil Appeals. We adhere to tbe ruling referred to, and decline to consider tbe assignments of error.

There appearing no fundamental error that would justify a reversal of tbe judgment, it is affirmed.

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184 S.W. 1100, 1916 Tex. App. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donaldson-v-mcelroy-texapp-1916.

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