189 S.W. 798 | Tex. App. | 1916
We will first consider plaintiff in error's motion to strike out defendant in error's brief, because filed too late. The brief was filed on October 21, 1916, the day this case was regularly set down for hearing and submitted. Rule 41a, Ct.Civ.App. (142 S.W. xiv), requires that four copies of brief of each party filed below be filed in the clerk's office of the Court of Civil Appeals on or before the hearing in this court. The brief of plaintiff in error was properly filed in the trial court, but there is nothing in the record showing whether or not defendant in error's brief was filed in the trial court, and plaintiff in error complains that a copy of it was not furnished him, and that he never saw it until the day the case was submitted. This proceeding, strictly speaking, is irregular; and, should we strike out defendant in error's brief, we find that the brief of plaintiff in error under the rules cannot be considered.
Only two errors are assigned, as shown by the transcript, and two are presented in plaintiff in error's brief, neither of which is correctly copied. There is no reference to any page of the transcript where the assignments of error can be found, nor does it state any proceeding had therein, except the statement that the court failed to sustain his demurrer to the petition. But, looking to the record, there is nothing showing that the demurrer was ever presented to the trial court, or that he ever took any action with reference thereto. Such being the case, there is nothing for this court to consider relating to the assignments of error.
There is no error shown by the assignments of error presented that requires a reversal of the case, and the judgment is affirmed.