Hogrobrooks v. Williams

324 S.W.2d 916, 1959 Tex. App. LEXIS 2463

• Court: Court of Appeals of Texas
• Decided: May 22, 1959
• Docket: No. 16018
• Status: Published

Opinion

BOYD, Justice.

Z. Jack Williams sued Inez Hogrobrooks and Ruby Taylor in trespass to try title to a tract of land, and for damages. Inez Hogrobrooks and Ruby Taylor had claimed the land under a will purportedly made by a former owner, Barbara E. Smith. Williams claimed the land through a deed from Barbara E. Smith. Ruby Taylor appears to have deeded any interest she may have had to Inez Hogrobrooks, and filed a disclaimer. Inez died, leaving Theodore M. Hogrobrooks as her only heir at law. He was subsequently made a party defendant. Trial was to the court and judgment was rendered for Williams. Theodore M. Hogrobrooks appeals.

No motion for a new trial was filed, and there is no statement of facts in the record.

Hogrobrooks filed a motion for continuance which was overruled, and that ruling is challenged as the only ground for reversal.

Rule 324, Texas Rules of Civil Procedure, provides, among other things, that a motion for new trial shall not be a prerequisite to appeal in a non-jury case, “But motion for new trial shall be a necessary prerequisite to consideration of the complaints mentioned in Rule 325.” Rule 325 provides that “In cases of motions for continuance, * * * the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; * * * Nothing in Rule 324 shall render a motion for new trial unnecessary in the instances mentioned in this Rule * * *.”

We think that compliance with Rule 325 is mandatory and .that appellant, in failing to file a motion for new trial complaining of the overruling of his motion for continuance, acquiesced in the ruling of the trial court. Roosth & Genecov Production Co. v. Shell Oil Co., Inc., Tex.Civ. App., 175 S.W.2d 653; Insurance Inv. Corporation v. Hargrove, Tex.Civ.App., 179 S.W.2d 383.

The judgment is affirmed.