Lamar-Delta County Levee Improvement Dist. No. 2 v. Dunn

42 S.W.2d 872

Opinion

WILLSON, C. J.

The appeal was perfected April 10,1931, which was after the Act of April 9,1931, General Laws 42d Legislature, p. 68, c. 45, § 1, amending article 1757, R. S. 1925 (Vernon’s Ann. Civ. St. art. 1757), with reference to briefs on appeal, took effect. Said Act of April 9, 1931, as did rule 32 for the government of Courts of Civil Appeals before the act became effective, required such briefs to contain “the alleged error or errors upon which the appeal is predicated.” The brief of appellant (filed August 29, 1931) does not contain an assignment of errors. For that reason, in disposing of the appeal, this court is restricted to a consideration of only errors “apparent upon the face of the record.” Article 1837, R. S. 1925. We have found no such errors, and therefore cannot do otherwise than affirm the judgment. Supreme Assembly of Modern Americans v. Mitchell (Tex. Civ. App.) 275 S. W. 224; Lebowitz v. Sueravitz (Tex. Civ. App.) 33 S.W.(2d) 476.

We do not think the use of the word “may” in the provision in the Act of April 25, 1931, General Laws 42d Legislature, p. 117, c. 75, § 1, amending article 1844, R. S. 1925 (Vernon’s Ann. Civ. St. art. 1844), that an appellant or plaintiff in error “may” embody assignments of error in his brief, requires the provision to be construed as making it optional with an appellant or plaintiff in error to include or to not include such assignments in his brief. It is clear enough, we think, when said provision is considered in connection with said Act of April 9,1931, said article 1837, and other provisions of the statutes, and rules promulgated by the Supreme Court, that the word “may” was used in a mandatory sense in said provision. Smalley v. Paine, 102 Tex. 304, 116 S. W. 38.

The judgment is affirmed.