Moreno v. Jenkins

436 S.W.2d 620, 1968 Tex. App. LEXIS 2578

• Court: Court of Appeals of Texas
• Decided: December 11, 1968
• Docket: 11643
• Status: Published

Opinions

PHILLIPS, Chief Justice.

This suit arose out of a collision between three automobiles. The defendants, ap-pellees here, were found by a jury to be negligent along with the attendant factors creating liability; however, the plaintiff, appellant, was found to be contributorily negligent and the trial court entered judgment adverse to him. Hence this appeal.

Appellant is before us on two points of error going to the merits of the case; however, as we must sustain two of appellees’ counterpoints on procedure we do not reach the substantive points.

Appellees’ counterpoint number 1 is that Appellant’s Motion for Judgment and to disregard certain special issue jury findings was not presented or acted upon by the trial court and it was therefore waived and abandoned and no error is preserved for consideration on this appeal.

We sustain this point. Barnett v. Woodland, 310 S.W.2d 644 (Tex.Civ.App. Austin 1958, writ ref’d n. r. e.); 39 Tex.Jur.2d, Motions and Orders, Sec. 8, p. 255.

We also sustain appellees’ counterpoint No. 3 that in the absence of a motion for new trial, the proper procedural predicate to complaint on appeal of submission of issues to the jury, this Court lacks jurisdiction of the case. Rule 324, Texas Rules of Civil Procedure. There was no motion for a new trial here. Lund v. State, 163 Tex. 102, 352 S.W.2d 457 (1962); St. Louis Southwestern Railway Company v. Duke, 424 S.W.2d 896 (Tex.1967).

We dismiss this appeal for want of jurisdiction.

Appeal dismissed.

ON MOTION FOR REHEARING