Ellis v. Jefferson Standard Life Ins. Co.

99 S.W.2d 953

• Court: Court of Appeals of Texas
• Decided: November 20, 1936
• Docket: No. 13460
• Status: Published

Opinions

BROWN, Justice.

The parties will be referred to as appellants and appellee for convenience.

While the "moratorium statute” was present with us, appellants, learning that appellee was about to sell certain improved real estate, together with the furnishings therein, under the authority vested in the trustee as provided for in the deed of trust which secured debts owned by appellee, the payment on which was in arrears, brought suit in the district court of Dallas county to enjoin appellee from making such sale. The trial court granted the temporary injunction prayed for, restraining appellee from having the property sold by its trustee.

Appellee answered, first, by asserting its right to foreclosure through its trustee because of default in the payment of its debts and prayed for a dissolution of the injunction; second, and in the alternative, appellee prayed that in the event it was not entitled to the relief first prayed for, that it be given judgment establishing its debt and liens and for foreclosure of its liens against the property.

A hearing being had,, the trial court . dissolved the temporary injunction, but this interlocutory order was the only order made in the suit and the cause remained on the docket of the district court.

Subsequent to the dissolution of the temporary injunction, it appears that a substitute trustee made a sale of the property in question. It further appears that this sale was abortive in that no authority was shown in the substitute trustee to make any such sale, and, further, because suit was then pending for a foreclosure through court decree.

The suit finally came on for trial, and on January 18, 1935, appellee filed its second amended original answer and cross-action, in which it demurred to the sufficiency of appellants’ original petition, pleaded its debts and liens, defaulting payment, the payment by it under the terms of the deed of trust of certain insurance premiums and certain taxes, made an itemized bill of particulars of the payment of the taxes and insurance premiums and had same properly sworn to, and asked for the establishment of its debt and a foreclosure of its liens. And in the alternative, it prayed by way of trespass to try title for recovery of the possession of the premises. Also, under appropriate allegations appellee prayed for the appointment of a receiver to take charge of the premises, and such receiver was duly appointed by the court.

Appellants answered, urging a general demurrer to appellee’s pleading and a number of special exceptions, and' alleged that she no longer desired to prosecute her original suit for injunction' and asked for the dismissal of such suit on her part. Appellants pleaded that appellee is estop-ped to seek a foreclosure of either of the deed of trust liens because of the action taken by the trial court, asserting that having done nothing more than secure a dissolution of the injunction theretofore awarded appellants, appellee had elected and could not now ask for the establishment of its debt and the foreclosure of its liens. Appellants then pleaded that after the temporary injunction was dissolved appellee caused a substitute trustee to act in the premises and on the first Tuesday in November, 1933, such substitute trustee sold the property, which was bid in by appellee, and a deed executed and delivered to appellee, which was placed of record; that such act on the part of appel-lee has estopped it from coming into court by an amended cross-action and praying that the same liens be again foreclosed by decree of court. Appellants pleaded that preliminary to the trustee’s sale and while this cause has been pending, they have attempted to refinance, renew, ánd extend such part of the indebtedness claimed by appellee as is secured by valid liens against the property involved, but that owing to the general economic condition existing, it has been and is now impossible to readily and easily obtain finances for renewing and extending real estate indebtedness, “but plaintiff says that she has reason to believe, and does believe, that if the purported legal title to the premises in controversy had not been attempted to be vested in the Jefferson Standard Life Insurance Company by the trustee’s deed executed and, delivered to it by said defendant John C. Cox, substitute trustee, and had the 'title of plaintiff to said real estate not been clouded by the recording of said conveyance by the defendant Jefferson Standard Life Insurance Company, all as hereinbe-fore alleged in paragraphs 19 and 20 hereof, that she would have been able long prior to this time to renew and extend such of the indebtedness claimed by defendant as is secured by a valid lien upon her property.”

Appellants pleaded further that all of these acts clouded their title and prevented them from obtaining funds to refinance the indebtedness claimed by appellee, and that appellants have been damaged by such acts, and that all of such acts alleged constitute such an election of remedies by ap-pellee as will in equity estop it from now seeking a judgment of debt and foreclosure under decree of court. There are further allegations in appellants’ said pleading which we will not notice because of the views taken.

Appellants further pleaded that the action for debt and foreclosure and that in trespass to try title are inconsistent, and moved the trial court to require appel-lee to elect upon which of its counts it relied for recovery.

When the case was tried, appellee elected to pursue its remedy of debt and foreclosure and openly announced to the trial' court that a personal judgment was not sought against appellants, but merely the establishment of its debts and a foreclosure of its liens.

The case was tried to a jury, and after all evidence and testimony had been adduced, appellants made a written request for an instructed verdict in their‘favor as against appellee’s right of debt and foreclosure. This was refused. The trial court charged the jury peremptorily to find for appellee on its cross-action and for a foreclosure of its liens as prayed for. And judgment was entered accordingly.

An appeal having been perfected to the-Court of Civil Appeals at Dallas, the cause was by the Supreme Court transferred to this Court of Civil Appeals.

The record brought before us is unique in many respects. We find 35 assignments of error in appellants’ brief, as well' as 28 propositions. Not one assignment of error cites this court to any particular part or portion of the transcript of the record in which such assignment of error may be found, saving and except No. 23, which refers to bill of exception No. 1; No. 24, which refers to bill of exception No. 2; and No. 25, which refers to bills of exception Nos. 3 and 4; but the place or places in the transcript where such bills of exception may be found are not mentioned.

The vice in appellants’ brief, if we may be permitted to use such expression respectfully, and we assuredly do so, is made apparent when we disclose the condition of this record. In the first place, the judgment is a lengthy one. In it we find where appellants have excepted in five separate paragraphs to certain rulings and action of the trial court. We find that appellants filed a motion for a new trial which contains 9 separate and distinct paragraphs asserting reasons for a new trial. We find that appellants filed a motion to correct the judgment of the court which contains 12 separate and distinct paragraphs. The substance of these paragraphs are as follows: (1) The judgment is erroneous because it fixes a lien in favor of appellee for taxes paid, when there was no evidence introduced showing any taxes were paid. (2) The judgment is erroneous and irregular, if not wholly void, because it provides for a sale of the identical real estate twice on the same day under two separate liens. (3) The judgment is erroneous in that it provides for a sale of the personal property first before the sales of the real estate, thereby depriving appellants of their right to point out which property shall be sold first. (4) The judgment providing for the sale of the personal property first deprives the appellants of their chance to save the personal property in case the real estate brings enough to cover the amount of the judgment. (5) The judgment is erroneous in that it provides that the real estate shall be first sold in satisfaction of the second lien and afterwards to satisfy the first lien. (6) The judgment is erroneous in that it fails to provide for only one sale of the real estate and for application of the proceeds, first, to payment of costs; second, to payment of the first lien; third, to the payment of the second lien, and the balance, if any, to appellants. (7) The judgment is erroneous in that it established two separate and distinct liens on the same real estate in favor of the same party against appellants. (8) The judgment is erroneous in that it provides that the purchaser of the real estate under the receiver’s sale of the second lien is cut off by a sale under the first lien. (9) The judgment provides for a sale of the property foreclosed upon by the receiver instead of by the sheriff, as provided by law. (10) The judgment is erroneous in that it fails to conform to the method provided by statute for the sale of personal property. (11) The judgment is erroneous in that it fails to dispose of defendant’s second count, being the count in trespass to try title. (12) The provisions of the judgment for the sale of real estate and personal property are inequitable, unfair, unjust to appellants and to prospective purchasers, are contrary to the laws and statutes, and same should be rewritten, revised, set aside and re-entered during the present term of court in conformity with the correct rules of procedure.

This motion was overruled on the same day the motion for a new trial was overruled, and exception preserved.

In addition to these matters, we find that before the transcript was taken out by appellants, they, on October 2, 1935, filed 35 assignments of error with the clerk of the district court.

Thus it is plainly seen that there are 9 assignments of error in the motion for a new trial, 5 assignments of error preserved in the body of the judgment of the trial court, and 35 assignments of error prepared and filed by appellants in the trial court, making a total of 49 assignments of error, in addition to the 12 errors pointed out in the motion to correct and reform the judgment. And yet appellants have brought forward in their brief only 35 assignments of error without attempting to advise the Court of Civil Appeals where such assignments of error may be found in the record and from what part of the record these assignments of error are taken.

We do not believe that any appellate court in this state should be required, under a record such as is presented to us, to ferret out each separate and distinct assignment of error in order to ascertain whether or not it has a proper place in the appellant’s brief and where in the record such assignment of error has been properly preserved.

We are fully aware of the fact that article 1844, of the Revised Civil Statutes, as amended by the Acts of the 42d Legislature in 1931, c. 75, § 1 (Vernon’s Ann.Civ.St. art. 1844) provides that the appealing party need not file assignments of error with the clerk of the court "below, but that he may embody in his_ brief “all assignments of error, distinctly specifying the grounds on which he relies. * * * All errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the Court to the error complained of.”

But we do not believe that the wholesome, substantial, and necessary rules for briefing causes on appeal have been changed in any material degree by this amended statute. And we are convinced that an appellant is as firmly bound under the present statute to present assignments of error which distinctly specify the grounds on which he relies as such party ever was before the statute was thus amended.

Rule 25, promulgated by the Supreme Court, defines a distinct specification of error, and concludes with the statement that it “must refer to that portion of the motion for a new trial in which the error' is complained of.”

These rules were prepared by the Supreme Court of Texas to the end that briefs would be helpful to the appellate •courts in that the briefer is required to point out to the appellate court and to lead the appellate court to that particular portion of the record which contains the'asserted error. There is nothing unreasonable or harsh in this rule when one considers that every record brought to an appellate court contains much matter that is not presented to the appellate court as showing error, and this rule and all other rules governing the briefing of cases in .appellate courts are intended to shorten the labors of the appellate courts to the .end that the appellate courts may quickly find and consider the errors presented and pass upon them with reasonable dispatch.

If rule No. 25 requires that an assignment of error based upon a portion of a motion for a new trial must refer to that portion of the motion in which the error is complained of, then it is equally certain that if any other error is raised by .an appealing party which is not found in the motion for a new trial, but which is found in some other portion of the record, it ought with' equal certainty to refer to that portion of the record in which the error complained of is found.

We do not believe that the appellate courts should “stalk the game and shoot it too.” We are of opinion that it is the plain duty of the briefer to stalk the game and that when he has done so the appellate courts should fire the telling shot.

We are further aware of the fact, and we do not need to cite cases to support the statement, that an appealing party is not compelled to rely upon the assignments of error found in his motion for a new trial, but that he may abandon same and rely upon other errors. We are further aware of the fact that the appealing party may rely upon the assignments of error found in his motion for a new trial and upon other assignments of error in addition thereto. It is interesting to note that there is no statute in the state of Texas absolutely requiring a motion for a new trial to be filed in a cause that was tried to a jury or in any other trial. Article 2232, Vernon’s Ann.Civ.St. provides: “New trials may be granted and judgments arrested or set aside on motion for good cause, on such terms as the court shall direct.” This article further provides when the motion must be made after the rendition of verdict, that it be in writing, properly signed, and that it specify each ground on which it is founded, and that grounds not specified will not be considered, and, further, when it shall be determined by the trial court.

We are aware of the fact that a trial court, during the term at which a cause has been tried, has the right on its own motion to grant a new trial. But we further find that by article 2233 not more than two new trials shall be granted either party in the same cause except when the jury “have erred in matter of law or been guilty of some misconduct.” Thus it appears to us that while article 2232 does not in so many words require the filing of a motion for a new trial in a cause tried to a jury, nevertheless it should be construed to mean that if the trial court does not of its own motion see fit to set aside the verdict of the jury and the judgment of the court rendered thereon and to grant a new trial in such cause, but such trial court is satisfied with the verdict and the judgment, that then' and under such circumstances the party complaining of such verdict and judgment must, in order to bring same to the attention of an appellate court when appeal is taken, set out in a motion for a new trial timely filed all assignments of error on which the appeal is predicated saving and except those errors which are classi-Bed as “fundamental errors apparent of record.”

The new practice act which governs such counties as Dallas, simply changes the time in which a motion for a new trial may be filed and in which it must be passed upon by the trial court; but not otherwise does it repeal article 2232.

Appellee has pointed out to us many defects in appellants’ brief and has answered subject only to the objections made. Specific objections are made to about 18 of the assignments of error and to about 17 of the propositions found in appellants’ brief, and these objections seem well taken.

Appellants’ brief contains 90 pages, the clerk’s transcript contains 111 pages, the statement of facts contains 147 pages.

In Chicago, R. I. & G. Ry. Co. v. Pemberton, 106 Tex. 463, 161 S.W. 2, 168 S.W. 126, our Supreme Court has held that where the assignment of error contains a reference by number to the paragraph of the motion for a new trial where the same ground of error is presented, this is a substantial compliance with the rule, although the page in the transcript is not pointed out to show the location of the motion in the transcript; and in El Paso Elec. Ry. Co. v. Lee, 110 Tex. 494, 221 S.W. 254, our Supreme Court has held that where it is distinctly recited in the assignment of error that the particular complaint was made ins the motion for a new trial, and as 'a part of the assignment the transcript page is given where such part of the motion may be found, the assignment of error substantially complies with the rule. But the briefer in the instant suit has made no effort to give us either of the “highway markers” referred to by our Supreme Court as sufficient to point the way, and we are left to grope through the entire transcript to find our way out.

Because of the manner in which this cause has been briefed by the appellants in violation of the rules for briefing cases, we respectfully decline to consider the assignments of error and the propositions found in the brief, and finding no fundamental error, the judgment of the trial court is by us affirmed.

Further we desire to say that if the abortive efforts on the part of our well-meaning legislators to simplify the trial of causes in the appellate courts have served to destroy the wholesome and necessary rules established by our Supreme Court for the purpose of expediting the examination of records on appeal and the reasonable dispatch of business, the members of this court wish to be so advised, and nothing would give us more pleasure than to have our splendid Supreme Court grant a writ of error in this cause and give to the bench and bar of this state a full and complete statement advising all of us which of its rules governing the proper briefing of cases in the appellate courts are now in full force and effect and which rules, if any, have been nullified by the act or acts of the Legislature.

Affirmed.