97 S.W.2d 285 | Tex. App. | 1936
R. W. Holt brought this suit in the district court of Gregg county against A. J. Swanson, Willie Holt, R. E. O'Keefe, and L. A. Norris, to cancel and set aside a certain conveyance from him to A. J. Swanson of a one-eighth interest in 225 acres of land situated in Gregg county, Tex.
A statement of this case is to be found in (Tex. Civ. App.)
On April 9, 1936, and since the cause was remanded to this court, plaintiffs in error R. E. O'Keefe and L. A. Norris have dismissed their appeal, so the cause is here now on the record as made in the trial court by A. J. Swanson and Willie Holt, and will be considered from their standpoint alone.
In the trial court all plaintiffs in error filed separate motions for new trial, and neither adopted the motion filed by the others. O'Keefe and Norris filed lengthy motions setting out in detail their complaint at the action of the trial court. Plaintiffs in error A. J. Swanson and Willie Holt each filed a motion for new trial, setting out the following grounds: "(1) Because the verdict of the jury is contrary to the evidence; and (2) because the judgment of the court is contrary to law." These motions "form no basis for consideration either of the trial court or of the appellate court." 3 Tex.Jur. § 171, p. 265; Texas Midland R. R. v. Johnson,
At the outset we are met with the motion made by defendant in error to strike the assignments of error brought forward by plaintiffs in error for several reasons; the first assignment of error, because no exception was taken to the action of the trial court in overruling the exceptions to plaintiffs' petition, and the remainder, other than No. 11, because they relate to matters raised by either O'Keefe or Norris. We think their contention in this respect is well taken. As said before, plaintiffs in error filed separate motions for new trial, and neither adopted the motion of the other. Norris and O'Keefe have dismissed their appeal, so any errors with respect to their appeal necessarily go cut with their dismissal, and only the assignments brought forward by plaintiffs in error Swanson and Willie Holt in their own behalf can be considered. Austin, Banking Commissioner v. Conaway (Tex. Civ. App.)
Moreover, there is no fundamental error apparent on the face of the record. The trial court had jurisdiction of the subject-matter; the pleadings of defendant in error were sufficient when tested by a general demurrer, and the judgment rendered by the court below was responsive to the pleadings and the jury's findings.
Therefore, the judgment of the trial court is affirmed.