198 S.W. 813 | Tex. App. | 1917
Appellant brought this suit against appellees, Baleman and McClamey, to recover upon certain notes executed by Baleman to appellant in part payment for certain lands conveyed to Baleman, and for foreclosure against both appellees of the vendor's lien reserved in the deed of conveyance to secure the payment of said notes. The cause was tried before the court without the aid of a jury, and judgment rendered against Baleman for the amount of the notes and in favor of McClamey, denying foreclosure of the lien. An amended motion for new trial was filed by appellant and overruled, and from the judgment entered this appeal is prosecuted. Findings of fact and conclusions of law were not filed by the trial court.
The assignments of error presented by appellant in this court are not copies of any of the assignments contained in the motion for new trial. The assignments presented here are entirely reconstructed. Article 1612, R.S., as amended by the Thirty-Third Legislature, page 276 of the Acts thereof, provides that where a motion for new trial has been filed, the assignments therein shall constitute the assignments of error. See, also, district court rule 101a. This provision of the statute is mandatory, and its salutary purpose is manifest. In a case tried before the court it is not necessary to file a motion for new trial in order to prosecute an appeal, but if such motion be filed, then the assignments therein contained constitute the assignments of error upon appeal. Cole v. Maccabees,
In the absence of proper assignments presented in this court, we can consider only "errors in law apparent on the face of the record," or, as they are sometimes designated, "fundamental errors." All other errors not assigned are waived. District court rule 101a (159 S.W. xi); Searcy v. Grant,
If we are at liberty to examine the statement of facts in this case for the purpose of ascertaining whether or not error has been committed, it still cannot be said that the errors complained of by appellant are readily seen. So under neither of the definitions given in the cases to which we have referred can the contentions of appellant be considered as presenting fundamental error.
In the absence of any errors properly assigned or fundamental errors appearing, it follows that the judgment must be affirmed. This court is not desirous of disposing of appeals upon questions of practice, and desires to pass upon same upon their merits, but in order to do so in this case it would transgress the statutory provision anl rules announced in the authorities above cited, which cannot be done.
Affirmed.
WALTHALL, J., did not sit, being absent on Committee of Judges assisting the Supreme Court.