Ford & Damon v. Flewellen

276 S.W. 903

• Court: Texas Commission of Appeals
• Decided: November 4, 1925
• Docket: No. 540-4280
• Status: Published

Opinion

POWELL, P. J.

The opinion of the Court of Civil Appeals in this ease is reported in 264 S. W. 602. That court affirmed the judgment of the district court.

Writ of error was granted by the Supreme Court because the decision is in conflict with Moody v. Early-Foster Co. (Tex. Civ. App) 246 S. W. 1087. Application for writ of error in this latter case was also filed. The court dismissed that application without jurisdiction, but made the following notation in doing so:

“We have not considered the question of fundamental error for the reason that it was not raised’in the motion for a new trial in the Court of Civil Appeals.”

In the instant case, no assignments of error were filed either in the district court or the Court of Civil Appeals. In that state of the record, the Court of Civil Appeals held:

“There is therefore nothing for this court to review, unless the record discloses some fundamental error, of which cognizance should be taken without an assignment. There is none; the trial court had jurisdiction of the parties and of the controversy; the judgment is one it had the power to render under the pleadings; and this court, without going through the entire statement of facts, is unable to say that any action prejudicial to the rights of appellants was taken. In such circumstances our Supreme Court has uniformly held that no error of law apparent upon the record appears, and that a Court of Civil Appeals is not required to hunt through the statement of facts. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85.”

In making this holding, the instant case is in dir.eet conflict with the Moody Case, supra.

We have, carefully reviewed the authorities cited by plaintiffs in error. We do not find where any opinion written by our Supreme Court has ever held a view contrary to the opinion of the Court of Civil Appeals in the case at bar. We have also carefully reviewed the opinion of the Supreme Court in the Kimball Case. It seems to be the fullest discussion of this question by that court. It is not at variance with any other decision by the Supreme Court. We think the Court of Civil Appeals herein has properly interpreted the holding in the Kimball Case.

We do not think it is necessary to add anything to what has been said in the Kim-ball Case and the instant case. When, as stated by the Court of Civil Appeals in this case, the only method for determining whether or not a fundamental error has been committed is by going through the entire statement of facts, then that court is not required to pass upon such a question. Any other rule, as we see it, would place an almost unbearable burden upon our appellate courts.

We recommend that the judgments of the district court and Court of Civil Appeals be affirmed.

CURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the .Supreme Court.