200 S.W.2d 717 | Tex. App. | 1947
This suit was brought by the Sterley and Irick Common School Districts against the County Board of School Trustees of Floyd County for the purpose of nullifying the acts of the County Board in grouping six common school districts for rural high school purposes. The case was tried to a jury and upon its verdict judgment was rendered that the plaintiffs, Sterley and Irick Common School Districts, appellants here, take nothing as against the defendants, County Board of School Trustees of Floyd *718 County and others not necessary to name, appellees. The appeal is predicated upon three points of error to the effect that the trial court erred in refusing the appellants' request for a peremptory instruction, in refusing to give appellants' Requested Special Issue No. 2 and in refusing to give appellants' Requested Special Issue No. 3. The appellees submit in their first counter point the proposition that the judgment should be affirmed for the reason that appellants failed to file a motion for new trial.
In our opinion, the counter point is decisive if it is well taken. The counter point is based on Rule 324 of the Texas Rules of Civil Procedure. Rule 324 is denominated "Prerequisites of Appeal". It is stated that the object of the rule is to require a motion for new trial to be filed as a prerequisite to an appeal in all district and county court cases unless the case is tried before the court without a jury, or a peremptory instruction is given, or the appeal is based upon some error arising after the action of the trial court upon the motion for a new trial, or unless five full days will not intervene from the time of the rendition of the judgment to the adjournment of the court for the term.
The appellants first contend that the counter point is not well taken because the court adjourned for the term by operation of law within five days from the date of the rendition of the judgment. Subdivision 110 of Article
The appellants' second reason for urging that the appellees' counter point is not well taken is that no motion for new trial is necessary when a peremptory instruction has been refused. They argue that since Rule 324 provides that no motion for new trial is required when a peremptory instruction has been given, the converse should be true. Whatever may be the logic of appellants' contention, it is not embodied in the rule. The rule states that its object is to require motions for new trial in all cases except those enumerated. Cases in which a peremptory instruction has been refused are not among the listed exceptions.
Thirdly, appellants urge that appellees' first counter point is unsound because the trial court ruled on all of the matters here presented for review during the trial. They cite in support of this contention Phillips Petroleum Co. v. Booles, Tex.Com.App. 276 S.W. 667 and Rowan v. Allen,
The appellants have failed to bring themselves within any of the exceptions enumerated in Rule 324 requiring a motion for new trial in jury cases as a prerequisite to an appeal. The appellees' first counter point is sustained and the judgment of the trial court must, therefore, be affirmed. Traders General Ins. Co. v. Scott, Tex. Civ. App.